Compulsory Acquisition Compensation: Homeowner Attitudes and the Principle of Equivalence
John David Sturgeon B.Bus (RPV & A), D Dip URP, Master Proj Mgt
A thesis submitted for the degree of Doctor of Philosophy at The University of Queensland in 2018 Business School
Abstract
Compulsory acquisition (CA) powers are increasingly used by governments as a way of facilitating the development of infrastructure. Given the known negative consequences of failing to uphold adequate protection of property rights, it is imperative that we understand whether property owners losing their property rights through CA are adequately protected and compensated in accordance with the established Principle of Equivalence doctrine.
This thesis combines the doctrinal method common to legal research with two sets of interviews; one set of 12 professionals and one set of 32 persons affected by CA in Queensland. It finds that CA practices being employed are contrary to both long established common law, which binds the State of Queensland, and to international human rights law. It also argues that CA in its current form in Queensland is contrary to the social covenant, in accordance with which the Australian liberal-democracy was established, and it demonstrates that adequate compensation is not payable in the State of Queensland because of an overly restrictive view of the law of compensation.
It further demonstrates that, not only are there social and psychological factors which arguably could be incorporated into the meaning of the Principle of Equivalence so that a more comprehensive measure of compensation might be used in the assessment of compensation, but that in analogous areas of law in Queensland, those factors are already in operation in determining levels of compensation.
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Declaration by author
This thesis is composed of my original work, and contains no material previously published or written by another person except where due reference has been made in the text. I have clearly stated the contribution by others to jointly-authored works that I have included in my thesis.
I have clearly stated the contribution of others to my thesis as a whole, including statistical assistance, survey design, data analysis, significant technical procedures, professional editorial advice, and any other original research work used or reported in my thesis. The content of my thesis is the result of work I have carried out since the commencement of my research higher degree candidature and does not include a substantial part of work that has been submitted to qualify for the award of any other degree or diploma in any university or other tertiary institution. I have clearly stated which parts of my thesis, if any, have been submitted to qualify for another award.
I acknowledge that an electronic copy of my thesis must be lodged with the University Library and, subject to the policy and procedures of The University of Queensland, the thesis be made available for research and study in accordance with the Copyright Act 1968 unless a period of embargo has been approved by the Dean of the Graduate School.
I acknowledge that copyright of all material contained in my thesis resides with the copyright holder(s) of that material. Where appropriate I have obtained copyright permission from the copyright holder to reproduce material in this thesis.
John David Sturgeon October 2018
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Publications during candidature
No publications during candidature
Submitted manuscripts included in this thesis
Journal Article submitted to the Alternative Law Journal July 2018: “Compulsory Acquisition, is it Constitutional in Queensland?”
Other publications during candidature
No publications during candidature
Contributions by others to the thesis
No contributions by others
Statement of parts of the thesis submitted to qualify for the award of another degree
None
Research involving Human or Animal Subjects
Ethical Clearance approval obtained from the UQBS Ethical Review Committee on 20 June 2016 chaired by Dr Tyler G Okimoto.
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Acknowledgements
This thesis would not have been possible without the support of many people. Firstly, my deepest appreciation goes to my former supervisor Dr Clive Warren and current supervisors Dr Peter Elliott & Dr Justine Bell-James, who gave me guidance, support and encouragement to complete the research. Many thanks are due to the entire faculty and administrative staff at the University of Queensland Business School for their invaluable help and support.
I would also like to acknowledge my fellow industry professionals and the dispossessed property owners who participated in the surveys providing the invaluable data that made the research project possible.
Last but not least, I would like to express my gratitude to my wife, Kylie and our children, Charlotte, Alexandra, Victoria and Jack for their support and encouragement during my journey towards the completion of this study, and without whose constant encouragement, understanding and support the work would not have been completed.
John Sturgeon October 2018
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Keywords
just terms, compulsory acquisition, resumption, property rights, eminent domain, solatium, principle of equivalence
This research is concerned primarily with the resultant effects of Compulsory Acquisition actions on homeowner’s Property Rights and whether they are provided appropriate compensation that satisfies the fundamental Principle of Equivalence doctrine.
The literature review undertaken has revealed that current legislation and associated policies provide property owners subject to Displacement with economic recompense. Limited provision exists to make allowance for losses associated with the social or psychological elements of Place Attachment, that are associated with the concepts of House and Home or Space and Place.
Australian and New Zealand Standard Research Classifications (ANZSRC)
ANZSRC code: 880199, Ground Transport not elsewhere classified, 40% ANZSRC code: 180124, Property Law (excl. Intellectual Property Law), 40% ANZSRC code: 180108, Constitutional Law, 20%
Fields of Research (FoR) Classification
FoR code: 1699, Other Studies in Human Society, 40% FoR code: 1504, Commercial Services, 40% FoR code: 1801, Law, 20%
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Table of Contents
Abstract ...... 2 Acknowledgements ...... 5 Keywords ...... 6 Chapter 1: Introduction and Project Overview ...... 10 1.1 Background to research ...... 11 1.2 Outline of this Research Project ...... 24 Chapter 2: Literature Review ...... 28 2.1 Legal and economic aspects ...... 28 2.2 The Australian native title experience...... 38 2.3 Place attachment...... 40 2.4 Conclusion...... 47 Chapter 3: Methodology ...... 51 3.1 Methodology for the theoretical discussion...... 52 3.2 Research design ...... 54 3.3 Qualitative data ...... 55 3.4 Analogous areas of legal research ...... 60 3.5 Appropriateness testing ...... 61 3.6 Designing and planning the interview ...... 62 3.7 Sampling ...... 63 3.8 Design of interview questions ...... 64 3.9 Survey method ...... 65 3.10 Diagrams ...... 68 Chapter 4: Solatium: past and present...... 70 4.1 Solatium in other areas of law ...... 70 4.2 Solatium for acquisition of land in other jurisdictions ...... 72 4.3 Notable Australian cases regarding solatium for land acquisition ...... 78 4.4 Discussion ...... 81 Chapter 5: Perspectives on the quantum of damages for CA ...... 83 5.1 The legal origins of compulsory acquisition legislation ...... 84 5.2 Historical background of the provision of infrastructure ...... 94 5.3 Development of the Principle of Equivalence ...... 104 5.5 Human rights aspects ...... 123 5.6 Conclusion...... 127 Chapter 6: Practical Section — Interviews & Answers ...... 130 6.1 Professional interviewees ...... 130 6.3 Discussion ...... 154 Chapter 7: Discussion ...... 157 7.1 Public reaction to compulsory acquisition ...... 158 7.2 What has changed in the last 100 years? ...... 160 7.3 Managing the risk to dispossessed landowners ...... 162 7.4 A legal analogy ...... 163 7.5 Contribution to knowledge and statement of originality ...... 168 Chapter 8: Recommendations ...... 170 7
8.1 Cost control — some recommendations ...... 171 8.2 A personal thought ...... 176 8.3 Concluding remarks ...... 177 Executive Summary ...... 180 Key argument ...... 180 Research question ...... 182 Results of interviews ...... 191 Limitations and scope for further research ...... 192 Bibliography ...... 196 Appendices ...... 210 Appendix A: Local News Coverage of Gold Coast Case ...... 210 Appendix B: Dispossessed & Displaced Owner Questionnaire ...... 213 Appendix C: Industry Professional Questionnaire ...... 218 Appendix D: Paper Submitted for Publication – The Alternative Law Journal ...... 223
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Figures: Figure 1: Damages for Nervous Shock. 107 Figure 2: Unconscionable Conduct. 121 Figure 4: Human Rights 126 Figure 5: Major Findings of Chapters 5 and 6 157
List of Abbreviations
ALARP as low as reasonably practicable CA compulsory acquisition Qld Queensland
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Chapter 1: Introduction and Project Overview
Governments and, more recently, the private sector are investing significant resources into new large-scale transport infrastructure projects. These projects often require the compulsory acquisition (CA) of privately owned land to permit development. The legislation utilised to compulsorily acquire interests in land and compensate dispossessed owners was established several decades ago, well before infrastructure of this nature and scale was contemplated. To illustrate, the legislation utilised in Queensland is the Acquisition of Land Act 1967 (Qld).
The announcement of every major infrastructure project comes with much fanfare, emphasising benefits for the community at large. However, there are those whose property is directly impacted by a proposed project and need to be acquired to make way for the new infrastructure’s footprint. The compulsory acquisition of their land, and the resulting displacement, gives rise to a legal right to compensation1 and questions of Pareto optimality and welfare economics.2
The entitlement to compensation for the compulsory acquisition of real estate interests in Australia is enshrined in the Federal Constitution: “The Parliament shall, subject to this Constitution, have power to make laws 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 laws.” 3 The genesis of this Constitutional Guarantee and the importance of private property rights can be traced back to the Magna Carta of 1215. In Queensland, however, the Constitutional guarantee only applies to CA undertaken by the Federal Government and is not applicable to the State Government.
The conceptual foundation of compensation theory is known as the ‘Principle of Equivalence’. This principle requires a person to be placed in the same position after the acquisition as they were before. That is, they must be no better and no worse off as a result of the compulsory acquisition action.4 As defined by Scott L J in Horn v Sunderland Corp.
1 Acquisition of Land Act Qld (1967) 2 Sebastian, M. & Ajay, P. (2007), Towards Reform of Land Acquisition Frame Work in India, Mumbai, India economic and political weekly. 3 Constitution of Australia s 51(xxxi) 4 Vaugn & Smith, An Introduction to compulsory purchase principles spanning 150 years, 2014 10
(1941)5, compensation for the dispossessed owner “is the right to be put, so far as money can do it, in the same position as if his land had not been taken from him. In other words, he gains a money payment not less than the loss imposed on him in the public interest, but on the other hand no greater.”
Current CA doctrines were developed on the assumption that everything a person owns is mere property and, as such, governments can value the compensation for loss according to economic market value principles. The measure of compensation according to the law is market value; the loss of the property right and any consequential disturbance loss is measured in an economic sense. Whilst the entitlement to compensation provides some comfort to the owners being dispossessed, this doctrine fails to recognise that the use of a home may be worth more to an owner than its value as an exchangeable commodity.
A significant volume of research exists to suggest the value of a home to many owners as a result of place attachment is greater than market value. For these owners, the loss experienced by being dispossessed is greater than that which can be compensated in pecuniary terms. In fact, the court in Olson v United States (1934)6 has acknowledged that “fair market value does not include special values attached to the property by the owner” and the ruling went on to say that “loss to the owner of non-transferable values deriving from his unique need for property or idiosyncratic attachment to it … is treated as part of the burden of common citizenship”
The object of this research is to analyse industry professionals’ and dispossessed homeowners’ attitudes to a compulsory acquisition event so as to provide a better understanding of whether current CA policy and legislation in Queensland meets the Principle of Equivalence ideals.
1.1 Background to research
Every major transport infrastructure announcement seems to create controversy; there are generally parties supporting the project (the winners) and those opposing it (the losers). Often it is the broader community members, the ultimate users of the proposed
5 Horn v Sunderland Corporation (1941) 2 KB 26 6 Olson v. United States, 292 U.S. 246 (1934)
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infrastructure, who are the winners. Those who are required to give up their homes and become displaced are the losers.
Governments justify these losses, and communities often accept them, on the grounds that the losses are suffered in the name of progress. This is known as maximal social utility in microeconomics (i.e., as our cities expand and increase in population), 7and the population is reassured by the knowledge that those who directly lose these property rights will be adequately compensated. This research is focused on those who lose their homes and are displaced, i.e., those whose property interests are compulsorily acquired and are compensated under relevant compulsory acquisition legislation in Queensland.
Property interests have been defined as a ‘bundle of rights’8. Dependent upon the applicable legislation, it is recognised that a private property owner has limited rights, according to the contents of the bundle, to property extending from the surface to the heavens above and below to the centre of the earth. The creation of transport infrastructure inevitably requires the taking of these rights. 9
As Jain points out, “Freedom of the person and the right to acquire, hold and enjoy property are the two pillars on which a democratic society rests. These are characteristics of the natural rights of the people. Property is not only an economic asset; it also has emotional and sentimental value”10. Notwithstanding this view, current compensation legislation and policy are primarily focussed on compensation in a monetary form.
There should be significant concern for our governments and communities if the fundamental pillars of our society are permitted to break down. This principle is clearly illustrated in terms of compulsory acquisition by examining the extreme consequences of the ‘Fast Track Land Reform’ program adopted in Zimbabwe in the early 1990s. Under this program, the Zimbabwean government ‘compulsorily acquired’ thousands of farms from private owners without paying compensation. The programme was intended to alter the ethnic balance of land ownership.11 This move was purportedly undertaken to address historical and racial injustices. The results of this program have been catastrophic for
7 Samuelson, Paul A, ‘Foundations of Economic Analysis (1947) 8 Johnson, Relections on the Bundle of Rights, 1998 9 Johnson, Relections on the Bundle of Rights, 1998 10 Jain, M P and G Xavier, ‘Compulsory Acquisition in Malaysia’ (1996) 2 Malaysian Law Journal 29 11 Cross, ‘Zimbabwe: Strategy for Economic Development. Agriculture: Development and Equity’, Salisbury: Conex Training Branch Forum (mimeo), 1981 12
Zimbabwe, resulting in “a pull-out of foreign investment, defaults on farm bank loans, and a massive decline in agricultural production”.12 There is clearly a link here between the compulsory government land seizures under the reform measures and the decline and failure of the property market in Zimbabwe.
In Australia, whilst the situation is very different from that in Zimbabwe, there is often unease at the announcement of significant infrastructure projects. As an example, a recent compulsory purchase of an owner-occupied residence on Queensland’s Gold Coast by the Queensland Government to make way for the second stage of the Gold Coast Light Rail system attracted some controversy (see Appendix A).
The importance of private property rights and their security under legislation continues to be relevant, with Hayek observing that “the principle of ‘no expropriation without just compensation’ has always been recognised since the establishment of property rights and associated laws since 1215 with the drafting of the Magna Carta”.13 In today’s economies, “a secure system of property rights is an essential ingredient for sustained economic growth and prosperity, as it provides both the incentive, security and collateral equity that are necessary to create the confidence to invest. There is a well-established causal link between property rights and higher standards of living”.14 A stable system of property rights underpins a secure basis for collateral in financial dealings.
The goal of obtaining the ‘great Australian dream’ of private property ownership motivates individuals “to improve the productivity and value of assets in the realisation that family and designated heirs may benefit from such endeavour”. In short, “[t]he evidence is irrefutable that the protection of property rights is the key to wealth accumulation and secure and stable societies”.15
I believe the instances of conflict between those who support and those who oppose major infrastructure are set to be increasingly prevalent as urban areas become more consolidated, creating heightened need to improve our transport systems and drive demand for additional infrastructure developments. As a result, governments are undertaking an
12 Richardson, The collapse of Zimbabwe in the wake of the 2000-2003 land reforms 2004 pp.192. 13 Hayek, How to control a democratic State 1960, P244 14 Stayley, Property Rights in Western Australia: Time for a Changed Direction, Institute of Public Affairs Occasional Paper, 2006
15 Stayley, Property Rights in Western Australia: Time for a Changed Direction, Institute of Public Affairs Occasional Paper, 2006 13
unprecedented number of compulsory acquisitions as a prelude to the development of such infrastructure. This proliferation of CA activity emphasises the importance of adequate compensation provisions in legislation and policies to protect and uphold property rights.
CA for private purposes
Mangioni forecasts that Governments are increasingly likely to use compulsory acquisition to make way for urban development, and to begin to use it for projects such as residential apartment blocks, rather than exclusively for making way for public needs such as transport systems.16 Essentially, this step means they will be utilising the statutory powers to preference one party’s private interests over those of another. Mangioni states that, while the NSW State government was largely compensating people fairly, changes to compulsory acquisition law should be considered to account for its increasing use.
This reasoning invokes the fundamental concept of compensation known as the Principle of Equivalence. Mangioni’s argument for reinstatement is a deviation from the application of current compulsory acquisition policy and legislature that treat compensation in solely a fiscal form, and is the first step in consideration of non-economic or non-fiscal compensation measures.
Is CA compensation inadequate?
The point Mangioni is making is that there should be scope for measures beyond the provision of solely fiscal compensation because the effects of compulsory acquisition are not merely fiscal. As well as emotional and sentimental attachments to a family home, there is also the question of the inconvenient and time-consuming nature of being involved in the process. The following quotation is from Nick Fahey, a Footscray (Melbourne) resident whose land was compulsorily acquired for a Victorian Railway Project:
I don't think it's reasonable that somebody who has already made their contribution to the state and the country through their working lives, and are in their retirement years, should actually have to deal with any of this.
It's all fine to know that you can get legal representation and valuers, but you've got to pick up the phone and engage all of these people. You've got to get your head around the whole issue. You've got to spend a lot of time organising to assert your
16 Mangioni, Just Terms Compensation and The Compulsory Acquisition of Land, 2008 14
rights, make sure that you're properly advised so you will be compensated properly, and we've been warned by a number of people that bad advice might lead to poor outcomes in compensation. So these people are actually having to effectively enter into a kind of full-time job for a while, in seeking to deal with this. I think particularly long-term residents should have a magic carpet ride into a new house. I don't think they should have to lift a finger. You know, people should be relocated as smoothly as possible to another place close to where they currently live. (Nick Fahey, Footscray Resident)17
Two key categories of impacts exist as a result of the compulsory acquisition of a home: those that are tangible, legal and economic impacts, and those that are intangible, social and psychological impacts. There is a significant imbalance in how these two categories are accommodated in current compensation policy and legislature. The interpretation of the legislature is that the Principle of Equivalence is satisfied primarily through economic means, aimed at legal and economic compensatory elements, and social and psychological elements are largely left uncompensated.
Given the increasing use of compulsory acquisition powers by governments and the known consequences of not upholding adequate protection of property rights, it is imperative that we understand whether property owners losing these property rights as a consequence of the action are adequately protected and compensated in accordance with the established Principle of Equivalence doctrine.
A. Claiming centrality and indicating importance
This thesis will argue that the development and evolution of compulsory acquisition law outlined in the first section of this chapter interferes with the essential freedom enjoyed by all Australians, which was explained by the first Chief Justice of Australia's High Court, Sir Samuel Griffith, as follows:
We start, then, with the principle that every man is free to do any act that does not unlawfully interfere with the liberty or reputation of his neighbour or interfere with the course of justice. That is the general principle. The liberty of another can only be interfered with according to law …18
17 ABC Radio National Programe 19 October 2010 Compulsory Land Acquisition 18 Clough v Leary (1904) 2 CLR 139, 15 (Griffith CJ). 15
Governments, when it is politically expedient so to do, will change the law. In R v Independent Broad-based Anti-Corruption Commissioner, the majority held that:
The principle of legality means that common law rights will not be taken by a court to have been displaced by legislation save where the intention to do so is "expressed with irresistible clearness".19
Where does this leave the householder, about to be dispossessed? As will be demonstrated in this project, the difficulty is one of adequately compensating dispossessed homeowners, in circumstances where non-financial losses might well exceed the monetary compensation.20
Forced removals erode the homeowner’s confidence, achievement, sense of belonging, friendships and links to community.21 In Queensland, there is no compensation for these factors. There is no allowance for the social issues that arise or the emotional stresses that are placed upon people, and even putting aside the issue of whether compensation paid by the government is fair economically (i.e. whether a fair price is paid for the property). The money does not compensate people for stress and strain.22 For example, in some cases, dispossessed owners need physical help in finding an alternative property.23
This project will demonstrate that CA without adequate compensation is contrary to both long established common law, which binds the State of Queensland, and to international human rights. It will also argue that this is contrary to the social covenant in accordance with which the Australian liberal-democracy was established. It will argue that significant private profits are earned by providing infrastructure which, whilst it might be of some public benefit, is possibly of less public benefit than it is of private benefit to constructor consortia, investors and shareholders.
It will further argue the disposition of property owners without their having the ability to be heard on questions of non-economic loss is a denial of natural justice, or what Lord Esher said in 1885 said was "the natural sense of what is right and wrong."24
19 [2016] HCA 8, [41]. 20 Pilot interview 12. 21 Pilot interview 9. 22 Pilot interview 11. 23 Pilot interview 10. 24 Voinet v Barrett [1885] 55 LJQB 39, 41. 16
This conception of natural justice was criticised by Ormrod almost a century later, when he said that the word ‘natural’ added nothing to the concept of justice, “except perhaps a hint of nostalgia for the good old days when nasty things did not happen”25. However, as I will demonstrate, the concept of private provision of public infrastructure is comparatively recent. Accordingly, in ‘the good old days’, private property was resumed, but not in furtherance of a public / private business case to the potential benefit of private shareholders and investors.
B. Research Question
The central research question of this project is as follows:
• Does the relevant Queensland compulsory acquisition legislation misconstrue the concept of the Principle of Equivalence by not adequately or justly compensating losses incurred by dispossessed homeowners?
C. Research Objectives / Focus
In order to answer the research, question the following task steps have been followed:
Step 1 - Develop an understanding of the Principle of Equivalence.
Step 2 - Apply this understanding to existing compulsory acquisition legislation and the attitudes of industry professionals and dispossessed homeowners through by conducting detailed interviews and qualitatively analysing the data.
Step 3 – Investigate the inability of the current Queensland CA legislation to be able to justly compensate for losses incurred: a) beyond market value parameters. b) for psychological impacts — e.g., place attachment or ‘root shock’. c) for personal time and effort taken up in relocation, finding new house, schools, employment, etc.
D. Hypothesis
This research project proceeds on the assertion that the principle of equivalence, as it is currently applied in Queensland, is inadequate in justly compensating the owners of
25 Norwest Holst Ltd v Secretary of State for Trade [1978] Ch 201, 226. 17
acquired land for the full range of losses incurred. A significant number of south east Queensland home owners have been displaced and forcibly relocated by CA legislation and policies to make way for a number of Public Private Partnership owned road tunnel projects including AirportLink, Clem 7 and Legacy Way.
The research indicates that there are many different impacts which flow from CA of land, and the law only deals with a very limited scope of them. For this reason, legal reform is needed. The formulation of a revised framework for the Principle of Equivalence is central to this thesis.
E. Discussion of the issues and problems
This research proceeds through an analysis including interviews with industry professionals and dispossessed homeowners on their attitudes to a compulsory acquisition event. It aims to provide an understanding of what industry professionals believe needs to be done to achieve the satisfaction of the Principle of Equivalence doctrine. It also aims to establish and provide an understanding of what losses homeowners incur and what is needed in order for them to be adequately compensated.
The research question cannot be investigated without an introductory discussion of the context of property rights, or:
Freedom of the person and the right to acquire, hold and enjoy property are the two pillars on which a democratic society rests. These are characteristics of the natural rights of the people. Property is not only an economic asset; it also has emotional and sentimental value.26
The importance of private property rights and their security under legislation continues to be relevant: Compensation is payable at common law for losses properly anticipating resumption of possession of the land.27 The general rule, which forms the starting point for the measure of damages, comes from the statement of Blackburn LJ in Livingstone v Rawyards Coal Co:28
26 M P Jain & G Xavier, ’Compulsory Acquisition in Malaysia,’ (1996) 2 Malaysian Law Journal 29. 27 Director of Buildings and Lands v Shun Fung Ironworks Ltd [1995] 2 AC 111 (PC). 28 (1880) 5 App Cas 25, 39. 18
That sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation.
The current thinking in Queensland is that compensation relates to monetary losses only, and this mindset is reflected in current legislation. That position, however, does not reflect the positions in common law or equity. As one judgement notes: “In order to enable the arbitrator to come to a just and true construction, it is his duty, I think, to avail himself of all information at hand at the time of making his award which may be laid before him.”29 This is a foundation of the principle of evidence and a pillar of procedural rationality and as will be demonstrated in Chapter Five, includes damages for non-economic loss.
The importance of the law in maintaining and upholding robust property rights, and the requirement justly to compensate when private property is compulsorily acquired by government, was emphasized by Justice Heydon in ICM Agriculture Pty Ltd v Commonwealth30:
Unless they have a duty to pay compensation, legislatures will tend to experience undue temptation to acquire the property of citizens, and will tend to give into it, because this will usually be cheaper than employing some alternative technique. The threat that legislatures will acquire property without just compensation will result in people electing not to generate property by saving, or developing their property to less than optimal levels, or seeking a greater rate of return to meet the risk of acquisition, or pursuing investment opportunities in jurisdictions which do provide compensation for compulsory acquisition. The threat of acquisition without compensation thus damages incentives to invest. It damages the prospect of a dynamically efficient economy in which incentives to invest improve long-term social welfare by creating an optimal level and allocation of investment resources... And there is a peculiar injustice in removing what may be the whole of one citizen’s assets without compensation instead of funding compensation for that citizen by taking a very small part of the assets of all taxpayers.
However, this respect of property rights does not reflect the position in Queensland. Current compulsory acquisition legislation (the Acquisition of Land Act 1967, Part 4, Sec 20) stipulate that governments should value the compensation for loss of real estate according to market
29 Bwllfa and Merthyr Dare Steam Collieries (1891) Ltd v Pontypridd Waterworks Co [1903] AC 426. 30 [2009] HCA 51, 240 CLR 140, [178] (9 December, 2009, Heydon, J). 19
value principles.31 This is backed by solid free-market economics, which have been applied in the area of legal theory by Posner’s ‘wealth maximising’ imperative of legal reasoning.32 This strand of legal thought emanates from the so-called Chicago School, a grouping of neo- classical economic theorists, and has as one of its underlying beliefs the notion that that government lacks the capacity to act for the common good.33
Posner’s brand of public choice theory essentially applies laissez-faire economic assumptions regarding allocative efficiency to political outcomes, and he specifically applies his ideas to the judicial process. Posner argues that, in order to reduce the inefficiencies of government decision-making, rationalist ‘market-force’ assumptions should form the basis of judicial decision-making in order to produce ‘efficient’ legal and social outcomes rather than ‘just’ outcomes. His theory explains the phenomenon in which, although in theory courts determine compensation on the basis that homeowners should be in a no better and no worse position financially than they would have been if the real estate interest had not been compulsorily acquired — a doctrine that in essence forms the foundation of the Principle of Equivalence — there is an implied assumption in the current formulation of that principle, as used in Queensland, that a home in terms of a legal interest is nothing more than a freely exchangeable physical commodity, and that all parties, including the dispossessed home owner, are willing participants in the transaction.
Following Bromley’s logic,34 the modern form of compulsory acquisition is nothing more than a revised version of the old enclosure movement, although admittedly no one was paid for the enclosure of the English Commons. The enclosure movement was a legal process adopted in England used to amalgamate and consolidate smaller fragmented landholdings. The empowering legislation was the Enclosure Acts enacted by Parliament between 1604 and 1914.
A significant volume of research exists to suggest that the value of a home to an owner in a wider sense is something more significant than a financial package expressed in terms of
31 Acquisition of Land Act 1967, Part 4 Sec 20 32 R A Posner, ‘The Ethical and Political Basis of the Efficiency Norm in Common Law Adjudication’ (1980) 8 Hofstra Law Review 487, 492-3. 33 John B Braden and Daniel W Bromley, ‘The Economics of Cooperation Over Collective Bads’ (1981) 8 Journal of Environmental Economics and Management, 134; Daniel W Bromley and Ian Hodge, ‘Private Property Rights and Presumptive Policy Entitlements: Reconsidering the Premises of Rural Policy’ (1990) 17 European Review of Agricultural Economics 197-214. 34 Daniel W. Bromley, ‘The Enclosure Movement Revisited: The South African Commons’ (1994) 28 Journal of Economic Issues 357. 20
market value.35 The interviews conducted for this research project, which appear in Chapter Six, together with the research reviewed in part three of the literature review in Chapter Two, suggest that the loss experienced by dispossessed home owners has dimensions that cannot be readily compensated solely in pecuniary terms based upon market value. Homeownership, it is argued, revolves around more than the tangible ‘bricks and mortar’ asset. It involves a place of belonging, intimacy, security, social relations and meanings of everyday life.36 There are high costs associated with human displacement that arise from compulsory purchase schemes, which include disruption of social cohesion in a community, and altering the way of life and livelihood patterns of the displaced inhabitants.37
The central principle governing the award of damages at common law is that they are compensatory.38 The idea of compensation is that, where a party sustains loss by reason of an action or omission by another which gives rise to a legal claim, he or she is, so far as possible through pecuniary means, to be placed in the same situation, with respect to damages, as if the loss not been occasioned.39 Compensation in the form of either common law damages or arising from a claim in equity, or both common law and equity,40 can fairly and reasonably be considered either arising naturally, i.e. according to the usual course of things, or such as might reasonably be supposed to have been something that might have been reasonably contemplated as the probable result of the action or omission which gave rise to a legal claim.41 In other words:
35 M H Hidalgo and B Hernandez, ‘Place Attachment: Conceptual and Empirical Questions’ (2001) 21(3) Journal of Environmental Psychology 273; M V Giuliani, ‘Theory of Attachment and Place Attachment’ (2003) Psychological Theories For Environmental Issues 137; S Jelley, A Study of Place Attachment (Masters of Marketing Thesis, University of Wollongong, 2013) 83; C L Anton and C Lawrence, ‘Home is Where the Heart is: The Effect of Place of Residence on Place Attachment and Community Participation’ (2014) 40 Journal of Environmental Psychology 451. 36 Robyn Dowling and Kathleen Mee, ‘Tales of the City: Western Sydney at the End of the Millennium’, in J Connell (ed), ‘Sydney: The Emergence of a World City’ (Oxford University Press, 2000), 244; Robyn Dowling and Kathleen Mee, ‘Editorial: Home and Homemaking in Contemporary Australia’ (2007) 24(3) Housing, Theory and Society 161. 37 Mark Livingston, Nick Bailey and Ade Kearns, ‘Neighbourhood Attachment in Deprived Areas: Evidence from the North of England’ (2010) 25(4) Journal of Housing and the Built Environment 409; Matthew Desmond, Carl Gershenson and Barbara Kiviat, ‘Forced Relocation and Residential Instability among Urban Renters’ (2015) 89(2) Social Service Review 227. 38 Johnson v Perez (1988) 166 CLR 351, 355. 39 Robinson v Harman (1848) 1 Ex Rep 850, 855 (Parke B). 40 J A Jolowicz, ‘Damages in Equity-A Study of Lord Cairns’ Act’ (1975) 34(2) Cambridge Law Journal 224. 41 Hadley v Baxendale [1854] EWHC Exch J70 (1854) 9 Exch 341, 156 ER 145, 151; Golden Strait Corporation v Nippon Yusen Kubishika Kaisha [2007] UKHL 12, [29]; Commonwealth of Australia v Amann Aviation Pty Ltd (1991) 174 CLR 65, 80 (Mason J Dawson JJ); 98 (Brennan J); Wenham v Ella (1972) 127 CLR 454, 471. 21
The general principle governing the assessment of compensat[ion] ... is that the plaintiff should receive the monetary sum which, so far as money can, represents fair and adequate compensation for the loss or injury sustained by reason of the defendant's wrongful conduct.42
The distinction between pecuniary and non-pecuniary loss is most readily exemplified by general damages for pain and suffering and loss of amenity of life43 in a personal injuries case.44 Such damages, whilst compensated in monetary terms, are not pecuniary in character because they do not compensate for the loss of any financial benefit. Consequential loss is any recoverable loss which transcends normal loss.45 In Australia, therefore, one may be compensated for a loss of earnings or earning capacity,46 for damage to one’s reputation, disappointment and distress,47 wrongful dismissal from employment,48 and hurt feelings as a result of discrimination.
The court will make its calculations with “as much precision as the subject matter reasonably permit[s]” 49, but sometimes the amount awarded can be “largely a matter of impression … on the material available”.50
Rigid formulae “must give way in particular cases to solutions best adapted to giving an injured plaintiff that amount in damages which will most fairly compensate him for the wrong he has suffered.”51 The solution must take into account matters which the party committing the action giving rise to the loss actually knows regarding special circumstances outside the ‘ordinary course of things’ as would be liable to cause loss.52
As I will argue in detail in Chapter Five of this research project, the issue of the abuse of power by a strong party in order to overcome a weak party, by the unconscionable use of bargaining strength,53 was substantively decided at least 100 years ago, when Nocton Lord
42 Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64, 116 (Deane J). 43 Civil Liability Act 2003 (Qld) s 3 (definition of ‘non-economic loss’). 44 See eg Florida Hotels Pty Ltd v Mayo (1965) 113 CLR 588. 45 Hadley v Baxendale (1854) 9 Exch 341. 46 Insight Vacations Pty Ltd v Young (2010) 78 NSWLR 641. 47 Baltic Shipping Co v Dillon (1993) 176 CLR 344. 48 Grace Keesing, "Contractual Rights and Remedies for Dismissed Employees after the ‘Employment Revolution’" (2012) 36(1) Melbourne University Law Review 104. 49 Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd (2003) 196 ALR 257 (Hayne J). 50 Griffiths & Beerens Pty Ltd v Duggan [2008] VSC 201, [200] (Pagone J). 51 Johnson v Perez (1989) 166 CLR 351, 355-56 (Mason CJ). 52 Victoria Laundry (Windsor) Ltd v Newman Industries Ltd [1949] All ER 997. 53 Gwynne Heaton (1778) 1 Bro. C.C. 9; 28 E.R. 949 953 (Lord Thurlow). 22
Ashburton 54 followed the much older Gwynne Heaton.55 ‘Bargaining strength’ is the power to say, ‘This is what we have determined that you will receive for your home; it is compulsory and you do not have any say in the matter,’ as was in the case of Kelo. Since Nocton Lord Ashburton,56 equity has further developed its underlying concepts of considerations and consciousness.57 Meagher, Heydon and Leeming suggest that equitable principles will develop over time but will not age or atrophy.58 Equity will assist a weaker party in cases in which there is “an inequality so strong, gross and manifest that it must be impossible to state it to a man of common sense without producing an exclamation of the inequality of it”59 — which almost exactly describes the power of a typical multinational build-up of massive infrastructure, backed by the power of a state government, when compared, for example, with a pensioner couple who have been living in their quiet seaside home for the past 60 years and who want nothing more than a peaceful retirement.
The High Court has set out categories that are recognised as parties who stand in a fiduciary relationship.60 There is no established rule to cover this relationship; therefore the analysis of whether a fiduciary duty is owed, and therefore a fiduciary relationship exists, requires the application of equitable principles.61 Deane noted that unjust enrichment concerns a situation in which unconscionable conduct is conduct so harsh that it “goes against good conscience”.62 I argue that the cases cited in Chapter Five of this research project support the proposition that, if a government’s actions in providing for a private infrastructure provider in the form of a privately owned consortia impact upon a private landowner so harshly “that it must be impossible to state it to a man of common sense without producing an exclamation of the inequality of it”63 and if the private member of the “public private partnership” unduly and thereby unjustly benefits from the harshness of the government’s
54 [1914] AC 932, 953. 55 (1778) 1 Bro. C.C. 9; 28 E.R. 949. 56 [1914] AC 932, 953. 57 Warren Swain, ‘Unjust Enrichment and the Role of Legal History in England and Australia’ (2013) 36(3) University of New South Wales Law Journal 1030. 58 R Meagher, J Heydon and M Leeming, Meagher, Gummow and Lehane’s ‘Equity: Doctrines and Remedies’ (Butterworths Lexis Nexis, 4th ed, 2002). 59 Duncan Mackenzie Kerly, ‘An Historical Sketch of the Equitable Jurisdiction of the Court of Chancery’, Yorke Prize Essay of the University of Cambridge for 1889 (University Press, 1890) 240. 60 Hospital Products Ltd v United States Surgical Corporation (1984) 55 ALR 417, 432. 61 LAC Minerals Ltd v International Corona Resources Ltd, [1989] 2 SCR 574, (Sopinka J). 62 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387. 63 Duncan Mackenzie Kerly, ‘An Historical Sketch of the Equitable Jurisdiction of the Court of Chancery’, Yorke Prize Essay of the University of Cambridge for 1889 (University Press, 1890) 240. 23
position,64 a fiduciary relationship exists because the government’s harshness offends minimum requirements of fair dealing.65
The rule that a trustee — in this case, the resuming authority — must not use his or her position to make a gain for him or herself also applies in respect of any profit, gain or benefit which accrues to one party (here, the private developer), as a result of a breach of a fiduciary duty by a second party (here, the government, as the Public Private Partnership (PPP) partner of the developer) to a third (here, the private landowner).66 It will therefore be presumed that any excess profits were obtained by misuse of the fiduciary position.67
These activities can hardly be described as either arms’ length or commercial, and the parties are hardly on equal footing.68 I argue that the government clearly has a duty as fiduciary, because of its power to compulsorily resume land, from engaging in activities that conflict or have the possibility of conflicting with that of its citizens, whose interests they are bound to protect.69
It follows, as per Chapter Five, that whenever a developer is making profits at the expense of dispossessed landowners, some of those profits ought to be applied to making good the non-financial losses of those landowners, or at least the most vulnerable of them. The economic concept which reassigns good is known as the Hicks criterion and was developed in 1940 by John Hicks 70
1.2 Outline of this Research Project
Following a review of the gaps in existing literature in Chapter Two and a discussion of methodology in Chapter Three, Chapter Four will examine the concept of solatium – a compensation for pain, suffering and solace – in some detail. This latter chapter includes a discussion of the legal definition of solatium, and its place in the law in State jurisdictions other than Queensland and South Australia. It will trace the development of the law and
64 Most recently discussed within the last few months by the Full Court of the Federal Court in Lifeplan Australia Friendly Society Ltd v Ancient Order of Foresters in Victoria Friendly Society Ltd [2017] FCAFC 74 (Allsop CJ, Middleton and Davies JJ, 12 May, 2017). 65 Commonwealth v Verwayen (1990) 170 CLR 394. 66 J C Campbell, ‘Are Proprietary Remedies to Recover Bribes Possible?’ (2013) 37 Australian Bar Review 231; FHR European Ventures LLP v Cedar Capital Partners [2014] UKSC 45. 67 Chan v Zacharia (1984) 154 CLR 178, 200. 68 Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41, 433. 69 Birtchnell v Equity Trustees Executors and Agency Co Ltd (1929) 42 CLR 384, 408. 70 The Valuation of the Social Income, Hicks J, 1940 24
policy relating to solatium from the time of private railway companies in England in the 1850s to the current day, and contrast this with the Queensland position, which does not recognise the concept of solatium in respect of compulsory acquisitions of land whilst, at the same time, recognising it in areas as diverse as wrongful death and defamation claims.
Chapter Five demonstrates that some Australian legislatures have reduced Australian land- owners to the status in which “we have nothing that we can call our own, or are sure of for a moment; we are all tenants at will, and hold our property at the mere pleasure of the Legislature.”71 This section argues that if the rights and freedoms concerning the ownership of property that have been developed since the Magna Carta and which are now part of the United Nations Universal Declaration Of Human Rights are to be restricted in the name of political expediency and avarice, rather than the overwhelming public good, dispossessed persons ought to be adequately compensated for this element as well.
This research project will demonstrate that adequate and just compensation is not payable in Queensland, because of an overly restrictive view of the relevant law which takes certain foundational legal decisions out of context and ignores other long-term developments in the law, particularly in terms of compensation for losses which are comparable to the loss of one’s home, and which fails to take account of the economic developments whereby private infrastructure corporations rather than governments now build infrastructure, and therefore profits from those developments can hardly be said to be for public benefit nor form part of the Commonwealth.
The project will demonstrate that both common law and equity in Queensland support the proposition that long-established land-holders, in particular, deserve more than is determined to be the ‘market value’ of a piece of land, particularly if it is a person’s home. This is not a matter of sentimental value. People have a limited amount of time in their lives and the amount wasted by the imposition of all the time-consuming activities associated with involuntarily moving from one home to another is not included as part of the compensation. These activities are not dealt with under allowances for disturbance,72 and this study indicates, through interviews with stakeholders, detailed in Chapter Six, that social, community and psychological factors ought to be addressed on a monetary basis.73
71 Vanhorne’s Lessee v Dorrance, 2 US (2 Dall) 304, 316, 1 L Ed 391, 396 (1795) (Patterson J). 72 Pilot interview 11. 73 Pilot interview 12. 25
Interviews with industry professionals, including solicitors and valuers, established the profound impact on people affected by compulsory acquisitions, and indicated that, in many instances, it took them some time to find somewhere else to live. This point is noted in the various judgements cited in Chapter Four. For elderly people particularly, it took a long time to develop the same sort of community rapport that they originally had.74 If they wanted to remain in their original area, given that many houses had been resumed for a project, the prices of the remaining houses available on the market increased. That means that there are often insufficient properties on the market in the area for people to buy.75 A typical comment was, “If they are gonna make me go, then they have to pay me because of the pain that I'm incurring of ... of ... of ... of being dispossessed."76
It is traumatic for older people to have to move. They often cannot buy into the same community77 of which they have become a part. Forcibly vacating them from their homes removes them from the community, so the resuming authority should make an effort to put people back in the same social and community position.78
Displaced owners seem to be happier, according to the interviews, when greater compensation is received, which seems to indicate that happiness can be in fact monetised. Typical comments, which will be discussed in greater detail in Chapter Six, indicate that the greater the period of time people have been in their home, the greater the amount of compensation seems to be needed to make them happy.79 “When people are being vacated, it's fairly emotional. It's not just about dollars.”80
Chapter Six will outline the results of the interviews, particularly with respect to homeownership values and meaning, and interpret them in accordance with the literature discussed in the third part of the review in Chapter Two, and then draw conclusions as to the state of the law.
This research project argues, in summary, that not only are there social and psychological factors which arguably could be incorporated into the meaning of the principle of equivalence so that a more comprehensive measure might be used in the assessment of compensation,
74 Pilot interviews 9, 10, 12. 75 Pilot interview 10. 76 Ibid. 77 Ibid. 78 Pilot interview 9. 79 Pilot interview 11. 80 Pilot interview 9. 26
but that, in analogous areas of law in Queensland, those factors are already in operation in determining levels of compensation. It will also demonstrate that Brown was not talking about a situation in which a loss was imposed by a public authority, in a private interest, even if there was some public benefit when he said:
[T]he purpose of compensation is that it gives to the owner compelled to sell the right to be put, so far as money can do it, in the same position as if his (her) land had not been taken from him (her) ... he/she gains the right to receive a money payment not less than the loss imposed on him/her in the public interest, but on the other hand no greater.... 81
Chapter Seven relays the conclusion, and the thesis which forms the answer to the central research question. The project concludes with an executive summary, in which, as explained in the methodology section of this chapter, the major arguments are illustrated by means of diagrams.
81 David Brown, ‘Land Acquisition’ (Butterworths, Sydney, 4th ed, 1996). 27
Chapter 2: Literature Review
This literature review aims to explore whether Queensland landholders are adequately compensated for CA. The review comprised four main components.
Firstly, it explores writings on existing legal and economic aspects of compulsory acquisition policies, procedures and principles in Queensland and in other jurisdictions.
Secondly, it will look at the body of literature on Aboriginal attachment to the land, as it appears as a legal concept in Australia in 2018, and examine the lack of relevant literature addressing attachment to the land as a legal concept relevant to anybody other than Indigenous persons.
Thirdly, it will examine literature concerning the psychological and social aspects of compulsory acquisition, place attachment and displacement of the homeowner.
Finally, it will identify gaps in the literature revealed by discussions within this review, which underpins the research question and research context.
2.1 Legal and economic aspects
The starting point for any literature review with respect to the compulsory acquisition of property must be to deal with current thinking on the concept of property. The High Court in Milirrpum v Nabalaco87 described a property right as the owner’s “right to use or enjoy, the right to exclude others and the right to alienate”, which can be enforced in the courts. That is, according to both Gray88 and Edgeworth89 the right to live in it, have a social attachment to it, keep others out of it and sell it. Felix Cohen90 wrote that the importance of “… the institution of property that we are trying to understand … (is) relations between people.”
The current legal thinking on the ‘right to use or enjoy’ seems to be summed up by Moses91 who writes that Courts have traditionally followed the existing common law principles set out by decided cases and legislation. This is known as the ‘recognised category test’. Marshall
87 (1971) 17 FLR 141, 171. 88 Kevin Gray, ‘There’s No Place Like Home’ (2007)11(1) Journal of South Pacific Law 73, 79. 89 Brendan Edgeworth et al, ‘Sackville & Neave Australian Property Law’ (Lexis Nexis, 10th edition, 2016). 90 Felix Cohen, ‘Dialogue on Private Property’ (1954) 9 Rutgers LR 357. 91 Lyria Bennett Moses, ‘The Applicability of Property Law In New Contexts: From Cells to Cyberspace’ (2008) 30 Sydney Law Review 647. 28
v Director General, Department of Transport92 is a case that deals with injurious affection, that is, when land is affected in an injurious manner, which harms its enjoyment. Where compulsory acquisition of neighbouring land limits the activities on or the use of a subject land or interferes with the amenity or character of that subject land (that is to say, renders it less enjoyable), or deters purchasers from buying that subject land or makes it more expensive to use that subject land, then the owner of the subject land is also entitled to receive the ‘special value’ thereof. This might exceed the market value if CA is applicable.93
Decided cases characterise ‘special value’ as follows: whilst it does not justify a ransom that might be extracted from a hypothetical purchaser with a special need for the land in question, and cannot be used to compensate an owner for the sentimental value, it includes the value of the land at the time of the expropriation, with all its existing advantages and possibilities, excluding any advantage due to the carrying out of the scheme for which the land has been acquired.94 Keogh does not enter into any speculation as to the difference between a ‘special need’ and ‘sentiment’, even though, as will be discussed in third section of this literature review, a need for a sense of place is more a special need than a sentiment.
Justice Biscoe of the NSWLEC95 is of the view that compensation, where only part of an owner’s land is taken, should not be limited to market value, even if the infrastructure being created increases the market value of the remaining land by an amount that’s greater than the loss from the land resumed. He also believes there should be compensation for the value of any disturbance suffered by a landowner, and, in a separate paper,96 discusses the valuation of transactional (what lawyers call ‘pure economic’97) losses, which include legal fees, moving costs, accountancy fees, conveyancing fees and other out-of-pocket expenses. Matters of valuation are discussed, including the code of conduct which ensures that valuations are fair, but only fair with respect to the matters covered by the legislation. However, in neither paper does Biscoe discuss the view of any environmental psychologist,
92 (2001) 205 CLR 603. 93 John Keogh, ‘The “Special Value” of Land in Compulsory Acquisition Cases – A Summary of the Legal Approaches to a Contentious Issue in Valuation Practice’ (Pacific Rim Real Estate Society annual conference, Adelaide, January 2001). 94 94 John Keogh, ‘The “Special Value” of Land in Compulsory Acquisition Cases – A Summary of the Legal Approaches to a Contentious Issue in Valuation Practice’ (Pacific Rim Real Estate Society annual conference, Adelaide, January 2001). 95 Peter Biscoe, ‘How Can Valuers Provide Reports that Meet the Needs of the Court in Compulsory Acquisition Compensation Cases?’ (Australian Property Institute [NSW Div] annual conference, April 2013). 96 Peter Biscoe, ‘A Perspective on Developments in Resumption Compensation Law’ (Environment And Planning Law Association [NSW] Inc, annual conference, November 2014). 97 Caltex Oil (Australia) Pty Ltd v The Dredge ‘Willemstad’ (1976) 136 CLR 529. 29
such as those discussed in third part of this chapter, which suggests that a need for a sense of place is more a special need than a sentiment.
New South Wales legislation provides for the payment of solatium, which is defined as compensation (such as money) given as solace for suffering, loss, or injured feelings.98 However, there has been little discussion as to how solatium is to be determined. Nor, unlike the situation in NSW, do Queenslanders who are the subject of compulsory acquisition orders receive any solatium. Interest in land in Queensland only amounts to economic interests, and discussion on this point, such as that of Dixon,99 has been limited to the nature of the interest in respect of which compensation is payable, without any mention of non- financial interests, such as a right to solatium.
The situation in Queensland appears not to have been the subject of judicial comment at all. Queensland has a large Indigenous population, and the lack of comment is noteworthy particularly because of the judicially recognised fact that many Indigenous Australians suffer severe economic disadvantage, as noted in the Victorian Supreme Court in Re Mathew100; and in the Federal Court in The Trustees of the Indigenous Barristers’ Trust v Commissioner of Taxation101. The link between the resumption of land subject to native title and economic disadvantage of indigenous Australians was not mentioned by economists such as Owen Stanley,102 or even by representatives of the Australian Government, such as Ken Henry.103
It appears from the above cases and articles that, if a value to be put on a parcel of land in Queensland is calculated on anything other than economic terms, it is incapable of being ascertained and therefore cannot be the subject of compensation. Accordingly, extinguishing native title over part of a piece of land, if it is for public purposes, does not attract financial consequences.104 Further, in Queensland, enjoyment which is not easily measured by an economic value is not the subject of compensation.
98 Webster Dictionary Definition of Solatium 99 Bill Dixon, ‘Compensation for Compulsory Acquisition of a Licensed Car Parking Space’ (2007) 28 Queensland Lawyer 63. 100 [1951] VLR 226. 101 (2002) 127 FCR 63. 102 Owen Stanley, ‘The Potential Use of Tax Incentives for Indigenous Businesses on Indigenous Land’ (Working Paper No 17/2002, Centre for Aboriginal Economic Policy Research, October 2002). 103 Ken Henry, ‘Addressing Extreme Disadvantage through Investment in Capability Development’ (Institute of Health and Welfare Conference ‘Australia’s Welfare 2007’, Canberra, December 2007). 104 South Australia v Slipper [2004] FCAFC 164. 30
The only discussion as to whether there can be any fundamental challenge to a compulsory acquisition without the payment of a solatium on the basis of a breach of a citizen’s civil or political rights is that of Peatman,105 discussing Durham Holdings Pty Ltd v the State of New South Wales.106 Peatman’s comment on the derogation of private rights, referred to by a judge in the hearing as “extreme law”, was that it enabled a constitutional challenge on the basis of the State government’s passing of a law that departed from fundamental common law rights to an extreme degree.
Even if the land is to be re-sold in a private-to-private transfer107 as part of a public-private partnership redevelopment operation (whereby the purchasing authority makes a profit on the resale, and uses that profit to fund a part of the redevelopment108) and even if the land being purchased is subject to native title, the States CA powers are valid.109 Meagher, commenting on Griffıths v Minister for Lands, Planning and Environment,110 notes that the majority of the High Court:
is at odds with a strong common law tradition of protecting private property rights … [because of] authority here and overseas for adopting a very strict construction of acquisition statutes ... The common law achieves protection of property rights by pursuing an interpretive strategy of deterrence, based on political embarrassment ... It is politically embarrassing [for politicians] to appear to side with developers against individual owners of homes or businesses…111
However, Meagher fails to venture an opinion as to why. There has been no literature identified which has criticised the Court for departing from common law standards and none criticised the members of the Court on the basis that, as judges, they cannot be politically embarrassed as they do not stand for election.
105 Maureen Peatman, ‘High Court Reinforces Private Land Owners’ Rights’ (2009) 15 Local Government Law Journal 80, 84. 106 (2001) 205 CLR 399. 107 Dan Meagher, ‘Compulsory Acquisition of Native Title Land for Private Use by Third Parties’ (2008) 19 Property Law Review 179. 108 Maureen Peatman, ‘High Court Reinforces Private Land Owners’ Rights’ (2009) 15 Local Government Law Journal 80. 109 Dan Meagher, ‘Compulsory Acquisition of Native Title Land for Private Use by Third Parties’ (2008) 19 Property Law Review 179,181. 110 (2008) 82 ALJR 899. 111 Dan Meagher, ‘Compulsory Acquisition of Native Title Land for Private Use by Third Parties’ (2008) 19 Property Law Review 179. 31
There doesn’t appear to be any literature commenting on the departure taken by the law of compulsory acquisitions from general common law and equitable principles that concern damages being paid in respect of loss caused to one party by the wrongful conduct of another. Rather than reflecting the common law, the Queensland position appears to reflect the views of Hans Kelsen (1881–1973), an Austrian legal philosopher who became best known for his contribution to theories of Germanic Legal Positivism,112 including his ‘reine Rechtslehre’ or ‘pure theory of law’. Kelsen described his theory as ‘pure’ because it only describes the law as a system of norms, in which a “norm is the meaning of an act by which a certain behaviour is commanded, permitted or authorised” and attempts to eliminate from the object of this description everything that is not strictly ‘law’.
The principle of compensation for the loss of individual property rights was formally established in Article 5 of the Amendments to the Constitution of the United States of America:
nor be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use, without just compensation.
This concept of just compensation established the theoretical framework behind the determination of monetary compensation payable under the principle of equivalence set out by Lord Nicholls in Director of Buildings v Shun Fung Ltd113, a case that has not been the subject of any significant commentary in Australia:
“Fair compensation requires that he should be paid for the value of the land to him, not its value generally or its value to the acquiring authority. As already noted, this is well-established. If he is using the land to carry on a business, the value of the land to him will include the value of his being able to conduct his business there without disturbance. Compensation should cover this disturbance loss as well as the market value of the land itself. The authority which takes land on compulsory acquisition does not acquire the business, but the … acquisition prevents the claimant from continuing his business on the land. So the claimant loses the land and, with it, the special value it had for him as the site of his business … in practice it is customary and convenient to assess the value of the land and the disturbance
112 Suri Ratnapala, Jurisprudence (Cambridge University Press, 2nd ed, 2013), 66-102. 113 [1995] 2 AC 111 (PC). 32
loss separately, but strictly in law these are no more than two inseparable elements of a single whole in that together they make up the value of the land to the owner.”
Indeed,Shun Fung was mentioned in: Caruana v Port Macquarie-Hastings Council.114 Commenting that in Shun, Lord Nicholls, in essence, explained that to be compensable a loss must be (a) caused by the resumption, (b) not too remote and (c) reasonably incurred. For example, if customers of a business desert it because of the threat of the resumption of land, such a loss of goodwill has been caused by the resumption, is not too remote, and is reasonably incurred.
However, “It would seem that the courts are not prepared to assess hardship, inconvenience, pain, nervous shock or suffering, under separate heads or as part of a claim for disturbance. Disturbance is concerned with the sum of money which will enable the owner to recover known and identifiable expense.”115
This is true also in the United States, where Fee writes:
Like the concept of market value, the [Urban Renewal Act's] measure of compensation treats homes as if they are generic and exchangeable — as if society may force an owner to exchange one home for another without causing any harm. It does not recognize non-transferable benefits that accrue to owners over time by remaining in the same home, and which are lost when eminent domain forces owners to relocate … [this leads to a] system of under compensation [which] is likely to cause governments to overuse eminent domain against homes ... where the public value of an eminent domain project does not outweigh the value of the homes to the owners, and therefore should not happen, although the low appraisal value of the homes makes it appear otherwise …”116
Although defined and classified in different ways, and although in respect of a different area of law, the idea that a law’s purpose must be legitimate and the means or law used to achieve that purpose should be appropriate, has been discussed by Kirk.117 In Kirk’s view, suitability, necessity and balancing, commonly described together as the necessity principle, are largely concerned with the reasonable appropriateness of a law. Balancing involves a
114 [2007] NSWLEC 109. 115 David Brown, ‘Land Acquisition’ (Butterworths,1972). 116 John Fee, ‘Eminent Domain and the Sanctity of Home’ (2006) 81 (3) Notre Dame Law Review 783. 117 Jeremy Kirk, ‘Constitutional Guarantees, Characterisation and the Concept of Proportionality’ (1997) 21(1) Melbourne University Law Review 1. 33
higher level of value judgement, since it necessitates assessing the desirability and merit of a law. There has been no scrutiny of the departure of Queensland’s law of land acquisitions from a system that allows injured persons to receive damages in respect of wrongful termination of employment, insults on the basis of race or religion, pain and suffering arising from the negligence of another, whether in the workplace, on the highway or in any other foreseeable circumstance, defamation, and wrongful infliction of mental harm. It is accordingly lawful to terminate a person’s ability to enjoy living at a particular place, without compensation for that loss of enjoyment, even if it causes that person mental harm; yet this is unexplored in the literature. Further, not a single article discusses Felix Cohen’s relationships between people.
There are several other notable gaps in the literature, all of which indicate there is a need for further research into this important area. For example, there is a piece of research118 that addresses the concept of solatium as it affects native title rights, and it is worth quoting this important article, for what it omits is almost as important as what it includes. To quote Glacken:
The traditional assumption underlying powers of compulsory acquisition, and the requirement to pay compensation arising from the exercise of that power, is that the costs of pursuing public purposes should not fall unjustly on those whose property is acquired … However, an owner should not, at the expense of the public, receive anything more than the fair value of his or her property at the time of the taking, plus compensation for particular losses flowing from the taking … [This is difficult] to calculate when the variable content of native title is concerned, because this includes a degree of attachment to land. Monetary compensation might not provide just terms for the acquisition of traditional indigenous interests in land, because, unlike ‘compensation’, which connotes full money equivalence, ‘just terms’ are concerned with fairness. The purpose of compensation is to place in the hands of the owner expropriated the full money equivalent of the thing of which he has been deprived. Whilst it cannot be less than the money value into which he might have converted his property had the law not deprived him of it, [it might be more, because …] traditional Aboriginal interests in land cannot be readily replaced, nor readily compensated for by the payment of money. [So …] the special nature of that attachment must be taken into account if just terms for their acquisition are to be provided. Reasonable financial compensation may not be coterminous with just
118 Sturt Glacken, ‘Some Aspects of Native Title as Compensable Property’ (2012) 23 Property Law Review 167. 34
terms … and that monetary compensation may not always provide appropriate compensation for the loss of Aboriginal interests in land. The law can provide compensation for things irreplaceable and for which there is no market … but making good such propositions would require specific facts.
However, Hughes and Little119 do not argue for solatium when discussing the quantum of compensation for extinction of native title rights, even in a case in which this was done for the private profit of a private developer. There is similarly no argument for solatium in Pocock‘s120 discussion on the extension of local government compulsory acquisition powers in Australia, either with respect to native title or otherwise, although she does discuss the need for public use of land where it is subject to compulsory acquisition in United States. She alone, amongst the various theorists, avers to the fact that removing a person’s ability to withhold sale may cause lasting psychological damage, but she does not develop her point any further.
This omission is curious, because her article covers such matters as the fact that equivalent alternative housing might not be available for purchase with the amount of compensation received, and that the value of otherwise excellent housing can be greatly diminished if the government removes services and infrastructure in an area that is scheduled for redevelopment. She does, however, in a separate article121 argue that large scale inner urban development requires buildings to be resumed, even if so doing will generate a private profit for a developer, because public-private partnerships are needed to accelerate the development of infrastructure, which “would be otherwise be delayed or delivered on a staged basis”122. She does not see any need to compensate landowners for anything other than pure economic loss, regardless of the amount of profit to be generated for the private developer, for reasons including that private development stimulates the economy:
[R]eliance on the free market does not promote an optimal level of land assembly. Government policies are directed at encouraging inner urban redevelopment and
119 Rebecca Hughes and Stacey Little, ‘Timber Creek: A First Step towards Native Title Compensation’, (2016) Native Title Newsletter (April),14-15. 120 Melissa Pocock, ‘Orgies of Seizure and Violence: Compulsory Acquisition and Private Sector Redevelopment – Lessons for Australia’ (2015) 20 Local Government Law Journal 27. 121 Melissa Pocock, ‘Compulsory Acquisition, Public Benefits and Large-Scale Private Sector Redevelopments: Can Australia Learn from the United Kingdom?’ (2014) 19 Local Government Law Journal 129. 122 Ibid,131. 35
urban consolidation. Public private partnerships are promoted as having significant benefits for both sectors ...
Therefore, at least according to Pocock, the fact that the private sector makes money out of taking away a person’s land justifies, at least in part, the government’s power to take land, provided there is some benefit to public infrastructure. If the private sector can make money from the land, it does not matter if the owner is Indigenous or not.
There is a significant amount of American literature on this point, although its setting in an Australian context is limited because it is based on the American Constitution, particularly the Third and Fourteenth Amendments. It does, however, show American thinking in the area. Fee123 argues passionately that Eminent Domain should not trump the sanctity of the home. However, he observes that the law in the United States has developed to a point at which, if it might be argued that compulsory acquisition is rationally designed to benefit the public, “government may displace homeowners even if there is a mere hope that a new use of the condemned property would benefit the public more than its old use, without accountability as to whether that hope is justified”. This enables “the ‘one-to-one transfer of property’ for private rather than public benefit”.124
This problem is compounded because of what he identifies as being a flaw in the law of ‘just compensation’, which he says fails to recognise the home as anything other than an exchangeable commodity, a mechanism that generally undervalues the home and that fails to recognise a “home's connection to memories, its proximity to a particular community of friends and family, its ability to provide an atmosphere of stability and comfort, [and] its ability to communicate the owner's personality to others”.125
Although Fee126 does not consider what rate of private profit will be made from such displacement, he nevertheless concludes that if governments or other parties were compelled to a pay an additional percentage over and above market value, in order to deter them from compulsorily acquiring homes except in cases of genuine public necessity, those acquiring parties would think more carefully about the value of the use to which compulsorily acquired land was being put. Gray goes further, deploring a situation in which the “state should be used to force an unconsented transfer from A to B where the operation of the
123 John Fee, ‘Eminent Domain and the Sanctity of Home’ (2006) 81(3) Notre Dame Law Review 783. 124 Kelo v City of New London, Connecticut 162 L Ed 2d 439 (2005), 456 (Stevens J). 125 John Fee, ‘Eminent Domain and the Sanctity of Home’ (2006) 81(3) Notre Dame Law Review 783. 126 Ibid. 36
open market has failed to generate the required bargain by means of normal arm’s length dealing”.127 He argues that:
The story is one of semantic mutation, the concept of ‘public use’ being steadily conflated with notions of public usefulness and public benefit. The original ‘public use’ requirement evolved into a test of public purpose, the legislature’s declaration of this purpose being ... ‘well-nigh conclusive.’ … [T]he exercise of eminent domain did not fail the test of ‘public use’ merely because the land of one private owner ended up in the hands of another private owner, provided that the latter’s use of the land conduced to greater public benefit. In an age of private finance initiatives there is no requirement that public ends should be sought exclusively, principally or even at all through the agency of a public (as distinct from private) enterprise.”128
Although she argues that other restrictions, which some would see as being for the public benefit, such as heritage restrictions, are an appropriation of a person’s property, Finlay129 further develops the thinking of Fee130 and of Kevin Gray131 (although her work does not cite either of those authors) as follows:
[The Land Acquisition (Just Terms Compensation) Amendment Bill 2009 (NSW)] ... is a fundamental change in the law and broadens the power of eminent domain, effectively allowing local councils to acquire property compulsorily for the purpose of then transferring it to a private developer. The fact that the NSW Parliament so readily approved such a significant qualification to individual property rights — and that this was passed with bi-partisan support — should be enormously concerning to all property owners in this country.132
The reason that this change should be a concern is that:
Apart from constitutional principle and the demands of justice, the denial of compensation is damaging to good governance. The denial of compensation eliminates the discipline that the price mechanism brings to decision making. A
127 Kevin Gray, ‘There’s No Place Like Home’ (2007) 11(1) Journal of South Pacific Law 73, 74. 128 Ibid, 77. 129 Lorraine Finlay, ‘The Attack on Property Rights’ (22nd Conference of the Samuel Griffith Society, Perth, Australia, 28 August 2012). 130 John Fee, ‘Eminent Domain and the Sanctity of Home’ (2006) 81(3) Notre Dame Law Review 783. 131 Kevin Gray, ‘There’s No Place Like Home’ (2007) 11(1) Journal of South Pacific Law 73. 132 Lorraine Finlay, ‘The Attack on Property Rights’ (22nd Conference of the Samuel Griffith Society, Perth, Australia, 28 August 2012) 31. 37
government that need not compensate owners has less reason to ‘get it right’ than a government that must.133
Whilst Kevin Gray134 references the few Australian cases in which the judgement has gone against the authority seeking to resume land, his article was written before the amendments to the New South Wales legislation, which Finlay clearly believes have destroyed the opportunity, at least in New South Wales, for just compensation and due process. Indeed, it appears she believes the situation in Australia is as tenuous for owners of property, as it is for owners of property in the United States. Finlay135 criticises governments of all persuasions, and sees no possible fetter, neither legislative nor judicial, on the dictatorship of government. However, she does not mention the contrary view of Raja Azlan Shah, declared in Pengarah Tanah & Galian, WP v Sri Lempah Enterprise Sdn Bhd
Unfettered discretion is a contradiction in terms … Every legal power must have legal limits, otherwise there is dictatorship. The Courts are the only defence of the liberty of the subject against departmental aggression. In these days when government departments and public authorities have such great powers and influence, this is a most important safeguard for the citizen; so that the courts can see that these great powers and influence are exercised in accordance with law.136
2.2 The Australian native title experience.
A large proportion of the compulsory acquisition of land in Australia has been visited upon its Indigenous population. This section of the review examines literature which, in summary, suggests that Australia has not yet freed itself from its colonial past, and continues to pay nothing other than lip service to the concept that land subject to native title belongs to the Indigenous inhabitants.137
The issue of non-monetary compensation for the acquisition of Native Title interests in Australia has been summarised as follows:
[T]here is a widespread recognition that compensation for loss or impairment of native title rights assessed only in accordance with the freehold market value of
133 Ibid, 33. 134 Kevin Gray, ‘There’s No Place Like Home’ (2007) 11(1) Journal of South Pacific Law 73. 135 Lorraine Finlay, ‘The Attack on Property Rights’ (22nd Conference of the Samuel Griffith Society, Perth, Australia, 28 August 2012). 136 [1978] 1 LNS 143, 148 (Malaysia). 137 Kevin Gray, ‘There’s No Place Like Home’ (2007) 11(1) Journal of South Pacific Law 73. 38
land, is not necessarily “just”. This is because freehold market value fails to take into account the subjective cultural and spiritual based value of the land to the Indigenous people, and does not truly reflect the losses of past, current and future generations.138
Berndt139 discusses the idea that land is a spiritual being for indigenous people: “Life came from and through the land, and was manifested in the land. The land was not an inanimate ‘thing’: it was, and is, ‘alive’.”
Much of the Australian literature on native title compensation focusses on ways of quantifying these cultural and spiritual aspects so as to incorporate them into a monetary compensation framework. For instance, many authors have sought to import personal injury and property law concepts such as special value and solatium into the native title context, as a means of valuing these intangible losses. Such compensation would then form a special head of value that “tops up” the freehold market value to satisfy the requirement for ‘just terms’. Solatium in this sense would appear to be contemplated by the Native Title Act regime (Litchfield 1999).
Arguably, property law concepts have limited applicability in the native title context, because they are fundamentally based on western market values, which in turn are predicated upon an individual’s right to sell private property in a market. Furthermore, the delineation of native title rights and interests into material and non-material aspects is rather artificial because the spiritual, economic, social and corporeal aspects of Indigenous life are indivisible and intrinsically connected with the land.140
According to Justice Woodward, “the only appropriate direct recompense for those who have lost their traditional lands is other land — together with finance to enable that land to be used appropriately’.141 This line of thinking is headed down the path of physical reinstatement of lost assets. There does not appear to be any literature dealing with any method of the calculation of the value of a loss of a sacred site.
138 Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN GAOR, 61st sess, 107th plen mtg, Agenda Item 68, UN Doc A/RES/61/295 (2 October 2007, adopted 13 September 2007). 139 Ronald Berndt, ‘Traditional Concepts of Aboriginal Land’ in R Berndt (ed), ‘Aboriginal Sites, Rights and Resource Development’ (University of Western Australian Press,1982). 140 See, for example, ‘Draft Aide Memoire on United Nations Declaration on the Rights of Indigenous Peoples’, African Group (9 November 2006). 141 D Smith, ‘Valuing Native Title: Aboriginal, Statutory, and Policy Disclosures about Compensation’, Centre for Aboriginal Economic Policy Research Discussion Paper (2001, no 222), 41. 39
Under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), a sacred site means “a site that is sacred to Aboriginals or is otherwise of significance according to Aboriginal tradition, and includes any land that, under a law of the Northern Territory, is declared to be sacred to Aboriginals or of significance according to Aboriginal tradition” (s.3). The Act defines Aboriginal tradition as “the body of traditions, observances, customs and beliefs of Aboriginals or of a community or group of Aboriginals, and includes those traditions, observances, customs” (s.3); Aboriginal tradition determines the rights available under the Act to seek a grant of land, to gain entry and use of areas and so on. Under s.10(1) of the Racial Discrimination Act 1975 (Cth), the Commonwealth, States and Territories must treat native title as equivalent to property rights, so native title cannot be extinguished without first expropriating the land from its traditional owners.
The like for like replacement of what is lost, whether in terms of Aboriginal spiritual beliefs, or from a physical perspective, would go a long way towards achieving the objectives of the Principle of Equivalence. There is no research on this point. Yet the fact that sacred sites exist indicates that Indigenous Australians have some attachment to them. Murphy opined in Onus and Frankland v Alcoa of Australia Ltd,142 that “if a cultural or religious interest founded on ‘Judeo-Christian Western-European’ traditions is enough to establish standing, then a cultural or religious interest founded on Aboriginal tradition is also enough.” 143
Altman144 argues that the move to require traditional Aboriginal communities to enter into leases of their own townships is a form of compulsory acquisition, and therefore possibly good politics but terrible public policy.
Most literature to this point has dealt with Indigenous attachment to land, however there is no reason in principle why non-Indigeous peoples cannot also have strong attachments to land. We examine this argument further in Chapter Six of this submission.
2.3 Place attachment
There doesn’t appear to be any Australian literature on the legal aspects of place attachment. There has, in particular, been no comment on the judicial opinion of Justice Murphy cited in the last paragraph. This is odd, because His Honour recognised the central problem with contemporary land acquisition theory: it does not take any particular number
142 (1981) 36 ALR 425. 143 (1981) 36 ALR 425, 439; Cf Lee J’s opinion in Coe v Gordon [1983] 1 NSWLR 419, 427. 144 Jon Altman, ‘Arguing the Intervention’ (2014) 14 Journal of Indigenous Policy 26, 26. 40
of people to make a site sacred, and it does not matter whether the people concerned are of any particular ethnic group. If a site might be sacred to a group of Indigenous persons, then, if a sufficient number of non-indigeous people feel a sense of place attachment to it, it can become sacred to any persons.
Students of international geopolitical situations will recognise the idea of attachment to place in the struggle between Israelis and Palestinians. History, archaeology, geography and cartography feature in what has been an international legal drama that commenced at the time of the Balfour declaration. In terms of the sense of attachment, according to Antonsich,145 it is hard to say which comes first, the chicken or the egg: because people tend to form a sense of identity along with their friends and family with various buildings that they use for living in, working in, or maybe dining or leisure activities, and this gives them a sense of comfort in familiar surroundings, they form an attachment (which he calls ‘personal referents’) to a region, which they then feel is forming an attachment with them. This idea is not reflected, as a legal concept, in any Australian literature,146 which raises the question of whether the current overseas literature bears out this thinking.
Quinn and Halfacre147 suggest that places hold special meaning, particularly in times of rapid globalisation and homogenisation of landscapes, because these individual places accrue history and symbolic meaning, and are repositories of emotion. They see place attachment as a matter of human well-being, with social aspects of a place giving a physical space a meaning to the individuals concerned. Giddens has described the sense of personal meaningless and existential isolation which is a consequence of living in late modernity;148 as a possible antidote, people grow attachment to a place because of the feeling of security it gives them. Quinn and Halfacre149 suggest that they do so in a way as if they were the children and the land the caregiver.150 Where people improve the land, in particular by
145 Marco Antonsich, ‘Meanings of Place and Aspects of the Self: An Interdisciplinary and Empirical Account’ (2010) 75(1) GeoJournal 119, 125. 146 Christine Pirinoli, ‘Erasing Palestine to Build Israel: Landscape Transformation and the Rooting of National Identities’ (2005) 173 Études Rurales 67. 147 C E Quinn and A C Halfacre, ‘Place Matters: An Investigation of Farmers’ Attachment to Their Land’ (2014) 20(2) Human Ecology Review, 117. 148 Anthony Giddens, Modernity and Self-Identity: Self and Society in the Late Modern Age (Polity Press,1991) 54-70. 149 C.E Quinn and A.C Halfacre, ‘Place Matters: An Investigation of Farmers’ Attachment to Their Land’ (2014) 20(2) Human Ecology Review, 117. 150 Ibid,123. 41
growing trees, flowers or vegetables, they see themselves as providing security to the land as caretakers or stewards and reciprocally gaining security in usufruct.
Apart from the fact that people like a particular area of land, they relate to the locality in which the land is situated. Hans Skifter Andersen151 describes a relationship that people have with a place in which they feel comfortable and secure, they feel confident, whether consciously or unconsciously. He writes that “People are often unaware of their bonds to the place they live in until they must consider leaving their place of residence.” Attachment, he argues, might result from spatial ranges such as home, neighbourhood, city or region, or attachment to the neighbourhood in the terms of social participation, bonds to friends and other “friend-related” reasons; it might come from a people’s pattern of activity in the region, such as going to school or work, the extent to which they used facilities in the region, and to some extent to the strength of social networks. Territoriality is defined as control that is claimed over a defined space, and in this regard, an intense, unique, personal link between an individual and place — a sense of 'autobiographical insideness' — which brings to the fore the question of personal identity, an identity that is singular and relatively stable.152 Stability incorporates the importance of family ties, friendships and strong local identities as migration-inhibiting factors, even when there are possible gains and benefits that might occur as a result of relocation to certain geographical areas. This is because there are bonds between individuals and places, which “can be based on affection, cognition, habits, and behaviours”. Whilst it might every so often be in a person’s economic interest to move, therefore, to a better area, which might have more jobs, better schools and better housing, it is quite common for humans not to wish to risk the unfamiliar, and to wish to stay where they are. This is true even in poorer economic areas.153
Jack154 sees such a personal identity as important for children, as “underpinning their feelings of security and belonging” and particularly when it is stable:
151 Hans Skifter Andersen, ‘Explaining Preferences for Home Surroundings and Locations, (2011) 22(1) Urbani Izziv (Slovenia) 100, 103. 152 Marco Antonsich, ‘Meanings of Place and Aspects of the Self: An Interdisciplinary and Empirical Account’ (2010) 75(1) GeoJournal 119, 125. 153 Lindsay Heinemann and Markus Hadler, ‘Resisting Economic Opportunities? An Inquiry into the Reasons and Motivations of Individuals who Stay in a Socio-Economically Deprived Area’ (2015) 21(1) Journal of Appalachian Studies, 86, 89-97. 154 Gordon Jack, ‘Place Matters: The Significance of Place Attachments for Children’s Well-Being’ (2010) 40(3) British Journal of Social Work, 755. 42
abstract knowledge about a place can be developed … [quickly, but] the “feel” of a place takes longer to acquire, growing out of a large number of … everyday experiences, as well as more significant life events. Long-term residence therefore strengthens place identity, facilitating local social ties, providing the time to invest places with personal meanings, and linking significant life events to place … Place exists at different scales, ranging from a particular part of the house or garden in which a person lives, through the streets, shops and other facilities and landmarks of the local neighbourhood or town in which they grow up…155
A sense of place therefore allows children as well as adults to, “gain tangible and intangible resources not through their personal human capital but through their social interactions and connections with others”.156
No Australian literature compares this non-Indigenous experience with the Indigenous narrative discussed in the last section of this review. The closest seemingly is Giuliani157 who discusses the emotional bonds developed in behavioural, affective and cognitive ties to social and physical environments:
That there are a variety of terms used to refer to affective bonds with places — rootedness, sense of place, belongingness, insideness, embeddedness, attachment, affiliation, appropriation, commitment, investment, dependence, identity, etc.
Place attachment is defined as “an effective bond or link between people and specific places”,158 places that might be only as large as a few streets or a neighbourhood.159 This does not appear to be restricted to culture, age of the persons concerned,160 or socio-
155 Ibid, 757. 156 Lindsay Heinemann and Markus Hadler, ‘Resisting Economic Opportunities? An Inquiry into the Reasons and Motivations of Individuals Who Stay in a Socio-Economically Deprived Area’, (2015) 21(1) Journal of Appalachian Studies, 86, 91. 157 M V Giuliani, ‘Theory of Attachment and Place Attachment,’ in Mirilia Bonnes (ed) ‘Psychological Theories for Environmental Issues’ (Routledge, 2017) 137. 158 M Carmen Hidalgo and Bernardo Hernandez, ‘Place Attachment: Conceptual and Empirical Questions’ (2001) 21(3) Journal of Environmental Psychology 273. 159 Gavin Parker and Joe Doak, ‘Key Concepts in Planning’ (Sage Publishing, 2012) 156. 160 Gordon Jack, ‘Place Matters: The Significance of Place Attachments for Children’s Well-Being’ (2010) 40(3) British Journal of Social Work, 755. 43
economic grouping.161 Indeed, writers describing such bonds span from Canada162 to the UK163 to Scandinavia164 to Ireland165 and examine these bonds as being cross-cultural — that is, even in times of increasing cultural and ethnic diversification of contemporary societies, a sense of place can result from the formation of communities of belonging, which are not limited to the narrow ethnicities or class identifications of the participants.166
The first significant research undertaken with reference to displacement from the human attachment to place was undertaken by Fried167 in 1963. The research investigated the psychological effects of the forced relocation of the population of the West End, a suburb in Boston. The study was conducted utilising interview techniques to gather data prior to and two years after the relocation to determine the psychological impacts of the displacement. The study found “the reactions of many of the interviewees resembled the sorrow experienced after the loss of a loved one.”168 Fried found that forced transfer from a place of residence caused an interruption in the individual’s ‘sense of continuity’ and fragmented two essential components of identity: spatial identity and group identity. They translate directly into the impacts of displacement as being the severance of attachment to residence and severance of attachment to community.
Williams and Kitchen169 tie this displacement directly to adverse health outcomes. A sense of place can build social capital, social inclusion and social cohesion; destruction of a sense of place, including by removing a person from a place in which he or she feels comfortable, is, they argue, associated with self-assessed problems in health, including mental health.
161 Mark Livingston, Nick Bailey and Ade Kearns, ‘Neighbourhood Attachment in Deprived Areas: Evidence from the North of England’ (2010) 25(4) Journal of Housing and the Built Environment 409; Lindsay Heinemann and Markus Hadler, ‘Resisting Economic Opportunities? An Inquiry into the Reasons and Motivations of Individuals Who Stay in a Socio-Economically Deprived Area’ (2015) 21 (1) Journal of Appalachian Studies, 86. 162 Allison Williams and Peter Kitchen, ‘Sense of Place and Health in Hamilton, Ontario: A Case Study’ (2012) 108(2) Social Indicators Research 257-276. 163 Gordon Jack, ‘Place Matters: The Significance of Place Attachments for Children’s Well-Being’ (2010) 40(3) British Journal of Social Work, 755. 164 Hans Skifter Andersen, ‘Explaining Preferences for Home Surroundings and Locations’ (2011) 22(1) Urbani Izziv (Slovenia) 100. 165 Mary Corcoran, ‘God’s Golden Acre for Children: Pastoralism and Sense of Place in New Suburban Communities’ (2010) 47(12) Urban Studies, 2537. 166 Marco Antonsich, ‘Meanings of Place and Aspects of the Self: An Interdisciplinary and Empirical Account’ (2010) 75(1) GeoJournal 119, 125. 167 Marc Fried, Grieving for a Lost Home (New York: Basic Books,1963). 168 Ibid. 169 Allison Williams and Peter Kitchen, ‘Sense of Place and Health in Hamilton, Ontario: A Case Study’ (2012) 108(2) Social Indicators Research, 257. 44
Janowitz and Kasarda conducted several significant studies of community attachment and sentiment in 1967 in the UK. Community attachment was measured using three variables: 1) feeling of belongingness to place of residence, 2) interest in neighbourhood activities, and 3) the pleasure or displeasure experienced by moving.170 Williams and Kitchen171 would add 'rootedness' and 'sentiment' to that list.
The study utilised several independent variables, community size, population density, length of residence, and socioeconomic data. In particular, the length of residence was closely correlated with the feeling of belongingness, and to sorrow at moving from a community, both of which were linked to age of displaced homeowner. The older they were, and the longer they had lived in the home and the community, the greater the emotional attachment and the greater the impact of the displacement.
In line with Maslow’s Hierarchy of Human Needs, Relph proposed that “Attachment to a place is considered a fundamental human need”.172 It has been observed by Jelley173 that several place attachment authors such as Klatenborn174, Knez175 and Lewicka176 have described the concept of place to include three key dimensions: physical (form and space), functional (activities), and psychological (emotion/cognition).177
It is the emotional attachment that transforms a space into a place and house into a home. A home is defined as “a place of rest from which we move outward and return … a place of security within an insecure world, a place of certainty within doubt, a familiar place in a
170 Morris Janowitz, ‘The Social Construction of Local Communities’ (1974) Sociological Theory and Survey Research 207-236; J.D Kasarda, & Morris Janowitz ‘Community attachment in Mass Society’, (1974) 39 American Sociological Review, 328-39. 171 Allison Williams and Peter Kitchen, ‘Sense of Place and Health in Hamilton, Ontario: A Case Study’, (2012) 108(2) Social Indicators Research 257, 262. 172 E Relph, ‘Place and Placelessness’ (Pion, 1976). 173 Sarah Jelley, A Study of Place Attachment (Master of Marketing Thesis, School of Management and Marketing, University of Wollongong, 2013). 174 B P Klatenborn, ‘Nature of Place Attachment: A Study among Recreation Homeowners in Southern Norway’ (2002) 19(3) Leisure Sciences 175. 175 I Knez, ‘Attachment and Identity as Related to a Place and its Perceived Climate’ (2005) 25(2) Journal of Environmental Psychology 207. 176 M Lewicka, ‘What Makes Neighbourhood Difference from Home and City? Effects of Place Scale on Place Attachment’ (2010) 30(1) Journal of Environmental Psychology 35. 177 B P Klatenborn, ‘Nature of Place Attachment: A Study among Recreation Homeowners in Southern Norway’ (2002) 19(3) Leisure Sciences 175; I Knez, ‘Attachment and Identity as Related to a Place and its Perceived Climate’ (2005) 25(2) Journal of Environmental Psychology 207; M Lewicka, ‘What Makes Neighbourhood Difference from Home and City? Effects of Place Scale on Place Attachment’ (2010) 30(1) Journal of Environmental Psychology 35. 45
strange world”.178 A neighbourhood is therefore a collection of homes and other significant places which together form a collective representation through symbolic markers that help with personal identification in the context of where people live,179 where becoming accustomed to a sense of stability and social mix can help generate social feelings that emotionally bind a person to a place.180
A neighbourhood created with others is a shared collective memory based on length of residence, and it feeds into a positive disposition towards place. “Social, public, collective memories are stored and transmitted in and through places”, and this process is “heavily relied upon for helping to delineate an inclusive suburban community.”181 “People become emotionally attached to places if these places support their self-identity”.182 Williams and Kitchen183 would add that long-term residents living in their neighbourhoods for 20 years or more had significantly higher ‘sense of place’ scores than did those who had lived in their neighbourhood for a shorter period. This point is significant because a “sense of place in turn helps to cement social embeddedness which acts as a bulwark against isolation and alienation”.184
It is a common theme in the literature discussed in this section that the stability of a neighbourhood is one of the things which gives residents a sense of place: “There has always been something uniquely personal about one's own [i.e. owner-occupied as opposed to leasing someone else’s investment property] home, making it different and in a sense of higher value than other forms of real property, although it might not appraise as such.”185 Interestingly, areas which had a high turnover of residents, and which were therefore less stable, appeared to provide even longer-term residents with less sense of place.186
178 K Dovey, ‘Home and Homelessness’ (Plenum Press,1985). 179 Mary Corcoran, ‘God’s Golden Acre for Children: Pastoralism and Sense of Place in New Suburban Communities’ (2010) 47(12) Urban Studies, 2537, 2546. 180 Mark Livingston, Nick Bailey and Ade Kearns, ‘Neighbourhood Attachment in Deprived Areas: Evidence from the North of England’ (2010) 25(4) Journal of Housing and the Built Environment 409, 411. 181 Mary Corcoran, ‘God’s Golden Acre for Children: Pastoralism and Sense of Place in New Suburban Communities’ (2010) 47(12) Urban Studies, 2537, 2547. 182 Mark Livingston, Nick Bailey and Ade Kearns, ‘Neighbourhood Attachment in Deprived Areas: Evidence from the North of England’ (2010) 25(4) Journal of Housing and the Built Environment 409, 411. 183 Allison Williams and Peter Kitchen, ‘Sense of Place and Health in Hamilton, Ontario: A Case Study’, (2012) 108(2) Social Indicators Research 257, 267. 184 Mary Corcoran, ‘God’s Golden Acre for Children: Pastoralism and Sense of Place in New Suburban Communities’ (2010) 47(12) Urban Studies, 2537. 185 John Fee, ‘Eminent Domain and the Sanctity of Home’ (2006) 81(3) Notre Dame Law Review 783. 186 Mark Livingston, Nick Bailey and Ade Kearns, ‘Neighbourhood Attachment in Deprived Areas: Evidence from the North of England’ (2010) 25(4) Journal of Housing and the Built Environment 409 411; Mary 46
Residential instability often brings about other forms of instability in families because, although moves begin with a desire to move and are, for the most part, rational, deliberate, and planned, the involuntary nature of forced displacement has been linked to a wide array of social and health disparities.187 It follows that the disruption that would flow from a person’s having to leave an area as a result of a compulsory acquisition (i.e. against the person’s will) would not only destroy that person’s sense of place, but, according to Livingston, Bailey and Kearns188 and to Williams and Kitchen,189 also go some way in destroying her, or his, existing self-identity. Indeed, according to Desmond, Gershenson and Kiviat190 the process of children changing schools and having to make new friends, adults needing to integrate into new neighbourhoods, and other traumatic perceptions of instability resulting from forced mobility, compromise the life chances of adults and children. The resulting trauma has been associated with material hardship, homelessness, and substantial mental health problems.191
2.4 Conclusion
Significant gaps have been identified in the body of knowledge in particular literature concerning the psychological and social effects and damage of compulsory acquisition, place attachment and displacement of the homeowners.
It should also be clarified the issue of land value capture and speculative gain from CA is another area worthy of further research however is outside the limits of this project.
This section has identified, from the social and psychological literature, that damages over and above the market value of a piece of real estate can be inflicted upon persons who are the subject of compulsory acquisition orders. That there is a sense of place, to which real significance attaches in non-economic terms, is borne out not only by this social and psychological literature, but in a true legal sense in Australia because of the significance of
Corcoran, ‘God’s Golden Acre for Children: Pastoralism and Sense of Place in New Suburban Communities’ (2010) 47(12) Urban Studies, 2537. 187 Matthew Desmond, Carl Gershenson and Barbara Kiviat, ‘Forced Relocation and Residential Instability among Urban Renters’ (2015) 89(2) Social Service Review 227. 188 Mark Livingston, Nick Bailey and Ade Kearns, ‘Neighbourhood Attachment in Deprived Areas: Evidence from the North of England’ (2010) 25(4) Journal of Housing and the Built Environment 409. 189 Allison Williams and Peter Kitchen, ‘Sense of Place and Health in Hamilton, Ontario: A Case Study’ (2012) 108(2) Social Indicators Research 257. 190 Matthew Desmond, Carl Gershenson and Barbara Kiviat, ‘Forced Relocation and Residential Instability among Urban Renters’ (2015) 89(2) Social Service Review 227. 191 Ibid, 230. 47
native title claims. They put a value on the ability of some Australians to observe practices, on certain areas of land, which are part of their tradition and therefore enhanced with a value which is demonstrably beyond mere sentiment, but nevertheless not readily quantifiable in terms of market valuations.
There exists a right of the State, (in Australia, the Crown) “to appropriate and control individual property for the public benefit, as the public safety, convenience, or necessity may demand”192 and subject to the payment of compensation, require the compulsory transfer of land to it.193
Because there has been significant misuse of the mechanism of ‘eminent domain’ in the United States by various levels of government in different states, this section discusses American thinking on the topic, even though much of it is based on constitutional provisions that do not apply in Australia.
A typical scenario of compulsory acquisition in the US might be as follows. A senior citizen has been living in a nice home in a good neighbourhood, overlooking the beach, for many years. A private developer approaches the municipality with a proposal that will have some public benefit in terms of additional public infrastructure, but which is fundamentally designed to benefit the developer. In fact, the developer stands to receive a large profit from the proposed development. The municipality, possibly needing cash, possibly wishing to boost the region’s flagging economy, and possibly wishing to gain a political advantage for the incumbent political party, agrees to the proposal. The home of the senior citizen is to be acquired, compulsorily, on behalf of private developers. This scenario is close to the facts in the US case of Kelo v City of New London.194
In Michigan, in 1981, the city of Detroit condemned (compulsorily acquired) the entire neighbourhood of Poletown, displacing over 4200 people, to make way for General Motors to build a car factory.195 Those forced to relocate included many elderly and long-term residents. Whilst General Motors’ factory could well have been built in other places, the
192 Thomas M Cooley, ‘A Treatise on the Constitutional Limitations which rest upon the Legislative Power of the States of the American Union’, (Little, Brown, 1868) 524, 559. 193 Joseph M Cormack, ‘Legal Concepts in Cases of Eminent Domain’ (1931) 41 Yale Law Journal 221. 194 545 U.S. 469 (2005). 195 Poletown Neighborhood Council City of Detroit, 304 N.W.2d 455. 48
Court permitted the seizures on the basis of public benefits, and rejected arguments that the acquisitions violated Michigan's public use doctrine.
This sort of land acquisition has generally not been possible in Australia. However, in New South Wales, Australia, the state government was able to legislate196 its way around a High Court decision197 which determined that a municipality had no statutory power to compulsorily acquire land for the purposes of ‘re-sale’, or in circumstances in which the land was required for a project in which the municipality was in a commercial agreement with a developer, such that part of the consideration passing to the developer for it carrying out development was the transfer of the land to be seized from a member of the public. The power to compulsorily acquire land was not enlivened, according to the High Court, even if the development itself was, in part, for a public purpose. The New South Wales state government’s amendments now give any municipality in NSW similar powers to those of a municipality in the United States. 198
In contrast, in Prentice v Brisbane City Council,199 the Supreme Court of Queensland refused to allow a municipality to compulsorily acquire land from a private owner merely for the purpose of facilitating a proposed development mooted to the council by a private developer. However, while in Prentice, Mansfield CJ saw no reason why a private land owner should “compulsorily, and against his will, be deprived of his property” in order to facilitate a developer’s project, there are a disturbing number of press reports200 suggesting that legislative change is increasingly making this possible.
The view that the compulsory transfer to a private developer would be overruled by the court, “notwithstanding that in a broad sense the interests of the city and its inhabitants were being served by the project” appears now to have been abrogated by Queensland Parliament. There is no longer a public use requirement — a purely private undertaking can still be
196 Land Acquisition (Just Terms Compensation) Act 1991. 197 R & R Fazzolari Pty Ltd v Parramatta City Council (2009) 237 CLR 603. 198 The Land Acquisition (Just Terms Compensation) Amendment Act 2016 (NSW) 199 [1966] Qd R 394, 406. 200 See for example Charlie McKillop, Mark Jeffery and Amy McCosker, ‘Political Strain Pushes Federal MP to Breaking Point as Community Anger Grows over Compulsory Defence Acquisitions’, ABC Rural, 23 January 2017; Jim Gainsford, ‘WestConnex Letters Anger St Peters Residents’, Sydney Morning Herald, 25 January 2015; Clay Lucas, ‘Residents Angry They Will Lose Their Homes to East West Link Despite Government’s Own Advice,’ The Age (Melbourne), 2 July 2014. 49
argued to be serving a legitimate purpose of government if there is any public benefit whatsoever, even the creation of jobs.201
As will be demonstrated in Chapter Five, because all Australians are equal before the law, if some Australians can have their rights with respect to their attachment to certain land protected, all Australians can have those rights protected. Yet, despite progress in this area in the United States, all Australians are at risk of the compulsory acquisition of their land, and not necessarily primarily for the public benefit. Whilst some public benefit might flow from compulsory acquisition, under the current models of infrastructure development, including the development of public housing, and civil infrastructure to be used by the public, the potential for significant benefits flow to the private sector owners of that infrastructure. This, as will be demonstrated in Chapter five, is the case even where the infrastructure is, at some time after it is built, transferred back to public ownership.
The risk to all Australian land-owners of compulsory acquisition for essentially private benefit, and a possible legal response to that risk, has not, as I have demonstrated, been clearly articulated in the literature to date. Both Gray202 and Finlay203 seem to believe that the legislatures have betrayed the public interest, such that rights in fee simple are no longer indefeasible, but rather held at the pleasure of large private enterprise, which has disproportionate influence over the Crown. Gray and Finlay seem to agree that there is nothing more that can be done to protect the public from neoliberal governments.
The current economic model of infrastructure provision indicates that more research needs to take place in this area.
201 Kevin Gray, ‘There’s No Place Like Home!’ (2007) 11(1) Journal of South Pacific Law 76. 202 Kevin Gray, ‘There’s No Place Like Home’ (2007) 11(1) Journal of South Pacific Law 73. 203 Lorraine Finlay, ‘The Attack on Property Rights’ (22nd Conference of the Samuel Griffith Society, Perth, Australia, 28 August 2012). 50
Chapter 3: Methodology
This research project seeks to reform almost 100 years of public policy in Queensland, and argue a position toward CA that has only recently been adopted in New South Wales.204
Neither the person carrying out the 2014 report into the system of compensation for compulsory land acquisition prior to the introduction of the amending NSW legislation,205 nor the relevant minister, when introducing the amending legislation into the NSW Parliament,206 gave any justification for the existence of solatium as a matter of public policy. Each merely sought to justify the increase in the maximum amount payable to disaffected landowners. There has, therefore been no public discussion since the publication of the Scott Reports in 1918,207 based on any type of social research, as to whether solatium, as a statutory right, ought to exist at all. Further, there is no literature concerning whether the ability of the State to transfer property rights to the public dector is a creep of its powers.
This thesis will utilise a mixed methodology consisting of both a theoretical and a practical component, the robust nature of this two fold methodology is designed to link legal theory to the practical issues associated with the psychological, social effects and damage of compulsory acquisition to place attachment and displacement of the homeowners :
• The theoretical chapter is doctrinal in nature, and examines the legal basis for a new principle of equivalence. • The practical element consists of qualitative interviews analysed with the assistance of NVivo software, examining the views of 12 professionals practising in the area of compulsory acquisition of land, and those of 32 dispossessed landowners, as to the way the compulsory acquisition process has been handled, in Queensland, with respect to roads and rail projects, in the recent past.
204 Land Acquisition (Just Terms Compensation) Amendment Act 2016 (NSW). 205 David J Russell, ‘Review of the Land Acquisition (Just Terms Compensation) Act 1991’ (NSW Department of Finance and Services, 2014). 206 New South Wales, Parliamentary Debates, Land Acquisition (Just Terms Compensation) Amendment Bill 2016 (NSW), 20 October 2016, (Duncan Gay). 207 The ‘First Report to the Ministry of Reconstruction of the Committee dealing with the Law and Practice Relating to the Acquisition and Valuation of Land for Public Purposes’ (L Scott, Chairman), Cd 8558 (HMSO, 1918); The ‘Second Report to the Ministry of Reconstruction of the Committee dealing with the Law and Practice Relating to the Acquisition and Valuation Of Land for Public Purposes’ (L Scott, Chairman), Cd 9229 (HMSO, 1918). 51
3.1 Methodology for the theoretical discussion
Many, if not most, theses which incorporate any substantial amount of law use a doctrinal methodology. The word ‘doctrine’ is derived from the Latin doctrina which means ‘to instruct, a lesson, a precept’.208 The doctrine includes legal concepts and principles of all types, which are sourced in decided cases, legislation, regulations and internal departmental guidelines. Doctrine has been defined as “a synthesis of rules, principles, norms, interpretive guidelines and values.”209
The method I have chosen explains, makes coherent, or justifies a segment as part of a larger system of law. I seek to explain the current view of the Principle of Equivalence, at least as it is expressed in relation to land acquisition in Queensland, in Chapter 4, examining the Scott Reports.210 The method chosen allows me to demonstrate, in Chapters 4 and 5, that this iteration of the principle of equivalence differs from that which exists in other areas of law, such as personal injuries law and defamation law, both in Queensland and in other jurisdictions.
This research will consider not just the words used, but also analyse why those words were chosen and, because of an absence of overt policymaking, to think about what was left unsaid. The term ‘an absence of overt policy-making’ refers to the fact that there is no mention of current policy in relation to land acquisition in Queensland with respect to private profit from public infrastructure which overtly informs the attitude to the Principle of Equivalence.
The Recommendations in the Scott Reports, whereby the right to solatium was abolished in England with respect to the public acquisition of private land, seem to have a basis in the fact that, by the time of Britain’s post-war reconstruction of 1918, the provision of infrastructure had moved from private railway companies to public works departments.211 The situation with respect to the development of public infrastructure in Queensland has, as
208 Websters Dictionary 209 Terry C Hutchinson and Nigel Duncan, ‘Defining and Describing what We Do : Doctrinal Legal Research’ (2012) 17(1) Deakin Law Review 83. 210 The ‘First Report to the Ministry of Reconstruction of the Committee dealing with the Law and Practice Relating to the Acquisition and Valuation of Land for Public Purposes’ (L Scott, Chairman), Cd 8558 (HMSO, 1918); The ‘Second Report to the Ministry of Reconstruction of the Committee dealing with the Law and Practice Relating to the Acquisition and Valuation of Land for Public Purposes’ (L Scott, Chairman), Cd 9229 (HMSO, 1918). 211 Much of the legislation of the time regarding the public resumption of private land appears in Public Works Acts, for example s 63(c)(i) of the Public Works Act 1902 (WA). 52
discussed in Chapter 1, reverted to the situation which existed in England at the time of the private railway companies.
In taking this approach, I adopt two sets of techniques. The first involves critical discourse analysis, which encourages researchers to be aware of what is left unsaid.212 Analysing the use of language by means of this method can demonstrate how certain structural inequalities, because they are hidden by a lack of transparency, become, over time, accepted as the natural order of things. For example, the lack of transparency with respect to the supernormal profits213 being made by private providers of public infrastructure means that the forcible reallocation of resources at the expense of dispossessed landowners in favour of private infrastructure providers has become, over time, accepted as the natural order of things.
This lack of transparency is also an assumption made for the purposes of this project. To this assumption, and to the methods used by Fairclough, I bring the additional analytical approach of hermeneutics, which is a way of filling gaps in the text by looking at the surrounding context. The method is explained by Makkreel as using reflective judgement in order to fill the gaps in one’s capacity to explain with meaningful interpretations,214 based on the research in an analogous area of law in which compensation is awarded to people who are adversely affected by the actions of others.215
This is the approach which Makreel attributes to Heidegger and Gadamer in order to make inferences that are either inductive or analogical. First, a researcher should form an independent legal reasoning according to the available texts — that is, legislation, cases, regulations, and, if necessary, and available, learned commentary. If a clear answer is not found in the text, then scholars should apply rational principles such as analogy from other areas of law, and consideration of the public interest and past practices,216 in order to produce an answer that is in harmony with the principles of justice and equity. Or, as Justice Allsop writes (writing extra-curially), in regard to the central theme of this research project:
212 Norman Fairclough, ‘Analysing Discourse: Textual Analysis for Social Research’ (Routledge, 2003); Norman Fairclough, ‘Critical Discourse Analysis’ (Longman, 2nd ed, 2010). 213 Paul Forward, ‘Public Private Partnership or Conflict: Is It Time for a New Approach?’ (2006) 29(3) UNSW Law Journal 263. 214 Rudolf A Makkreel, ‘Interpretation, Judgment, and Critique’, in Niall Keane and Chris Lawn (eds), The Blackwell Companion to Hermeneutics (Wiley-Blackwell, 2016). 215 J. J. Snyman, ‘Conceptions of Social Inquiry’. 216 William Elford Rogers, ‘Interpreting Interpretation: Textual Hermeneutics as an Ascetic Discipline’ (Penn State Press, 1994) 162. 53
The search for the balance between coherent principles and rules (whether the latter are framed or dictated by forms of action, or procedure, or narrowly confined precedent or statute) may perhaps be seen in the [centuries-long] development, and struggle over the structure, of the law of restitution or unjust enrichment ... At what level of abstraction is the statement that ‘a person who has been unjustly enriched at the expense of another is required to make restitution to that other’ useful or valid or operative? 217
This method allows cross referencing from which intuition can extract further understanding.218 In Boustead Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank Bhd219 Gopal Sri Ram JCA discussed equitable principles by which justice is rendered, according to the circumstances of the case. Thus allowing an underlying assessment standard of what it means to take action in a reasonable manner in making a valuation — the taking of an objective assessment of all the material that has been collated or should have been collated.220
3.2 Research design
Research design refers to the approach used to conduct the research in question. This research had two phases. The first one was the exploratory, or deductive, phase, based on scanning and analysing the existing body of knowledge on the topic, presenting an analysis of the historical development of the law of compulsory acquisitions in Australia, and questioning, as a matter of legal doctrine, whether the Queensland position on the question in 2018 is comparable with developments in other areas of common law and equity, either in Queensland or in other common-law jurisdictions.
This research will be of a doctrinal character, and will focus on qualitative analysis of existing sources, mainly legal cases. This part will form the basis of the theoretical framework on which the rest of the research will be based. The theoretical findings from this part of the research will then be tested and analysed for their practical usefulness in the second phase of the research, which is concerned with primary data collection by way of interview, and analysis of the results.
217 James Allsop, ‘Conscience, Fair-Dealing and Commerce – Parliaments and the Courts’ (FCA) [2015] Federal Judical Scholarship 17, [14]. 218 Rudolf A Makkreel, ‘Interpretation, Judgment, and Critique’, in Niall Keane and Chris Lawn (eds), The Blackwell Companion to Hermeneutics (Wiley-Blackwell, 2016). 219 [1995] 3 M.LJ. 331, FC. 220 Re Georges and Telstra Corporation Ltd, [2009] AATA 731, [23]. 54
Research Objective Process
Phase 1 – Investigate the existing body of knowledge and review current Queensland CA legislation to be able to justly compensate for losses incurred: a) beyond market value parameters. b) for psychological impacts — e.g., place attachment or ‘root shock’. c) for personal time and effort taken up in relocation, finding new house, schools, employment, etc.
Phase 2 – Apply this understanding to existing compulsory acquisition legislation and the attitudes of industry professionals and dispossessed homeowners through by conducting detailed interviews and qualitatively analysing the data.
3.3 Qualitative data
Interviews are commonly used to collect qualitative data, which are then analysed to gather any empirical inferences that can be made from them. The primary data for this study were captured using face-to-face semi-structured interviews of 12 valuers, solicitors, employees of infrastructural authorities, and other professionals working in the field for both constructing authorities and dispossessed landowners. An unbiased, open interview technique can produce a valid and reliable set of responses. However, it is heavily dependent on the type of question, and manner in which questions are asked and responses solicited from the interviewee.221
Interviews can have many advantages over questionnaires and surveys, because of the human interaction involved. This interaction allows questions to be asked in a more personal manner. If any ambiguities arise, they can be explained then and there. The interviewees can also properly explain their answers and their reasoning behind those answers. This means that a properly constructed interview can collect a larger amount of, and more in- depth, information, relevant to the research at hand, than other forms of data collection.
221 M. T. Holden, ‘Choosing the Appropriate Methodology: Understanding Research Philosophy’ (2004) 4 Marketing review 4. 55
The interview approach can be unstructured or semi-structured. For the interviews conducted in the preparation of this project it is worth remembering that “The improper matching of methodology to the research problem may produce spurious results, ultimately having a negative impact on the researcher's professionalism and the authority of research science.”222 In order to avoid this scenario, it is imperative that appropriate and robust research methods be selected and incorporated in the research design.
Interviewees can add detail and the interview does not follow a fixed list of questions, or ask questions in the same pattern. However, the semi-structured nature meant that similar ground was covered in each interview. This research project relates to complex subject matter. It required, on occasion, technical or knowledge-based answers from the interviewees. The choice of semi-structured interview allowed for a much more personal interaction despite the complexity, making the experience more social and friendly, and an ideal approach for in-depth qualitative analysis since it encourages uninhibited expression.
Once the research problem was identified and the associated research question formulated, the next step was to develop a theoretical framework identifying the variables appropriate to the research. The theoretical framework allowed the subsequent formulation of the hypothesis that resulted from the research questions that are to be tested and proved.
Historically, studies that have involved the exploration of attitudes of homeowners have necessitated qualitative research. Much of it engages the use of primary data collected by in-depth interview, typically involving small sample collection of detailed transcripts in which to glean an in-depth contextual understanding of the problem. Perry points out that qualitative research is exploratory in nature, the aim of the proceedure being to deduce answers to 'how?' and 'why?' questions.223 This attribute is desirable when trying to determine the variables that determine homeowner attitudes towards compulsory acquisition compensation. The disadvantage of relying entirely on qualitative data is that they would likely necessitate smaller sample sizes and have resultant dependability issues. In order to counter this limitation and balance the research, a quantitative research survey was proposed to expand upon the findings of the qualitative research. This design and methodologies are required to conduct a systematic enquiry, provided in the conceptual
222 M. T. Holden, ‘Choosing the Appropriate Methodology: Understanding Research Philosophy’ (2004) 4 Marketing review 4. 223 C Perry, ‘A Structured Approach for Presenting Theses’ (1998) 6(1) Australasian Marketing Journal 63. 56
framework, with a view to providing data samples to analyse and provide an insight into possible solutions to the problem.
The interviews with homeowners who have been dispossessed by compulsory acquisition, and who responded to requests for interviews, together with interviews with compulsory acquisition professionals, sought ideas, context, stories and themes, tapping into unique knowledge and experiences. It was expected that the exploratory nature of the survey technique would assist in the clarification of ambiguity identified in the research problem and help formulate more precise quantitative investigations to test the hypothesis associated with the impacts of the compulsory acquisition action.
After this stage, a larger sample quantitative survey was undertaken, utilising focused and formulated questions in order to validate and test theories and hypotheses identified from the literature and quantitative interviews. Questions for both sets of interviews were, therefore, based on both inductive and deductive research strategies. Each was informed by my own practice and experience of deductive research, and also by theory drawn from previous research.224 The detailed interview study was, additionally, designed to contrast the findings of professionals experienced in compulsory acquisition practice, in comparison with those of individuals who experienced displacement as a result of compulsory acquisition actions.
It was necessary to limit the enquiry to practitioners working in Queensland, because the legislation in Victoria and in New South Wales provides very different results (as has been discussed in the introduction to this research paper), and accordingly the thoughts of members of the profession in those states was not thought to be relevant to the research lines of enquiry. It was not possible to generate a large sample size of professionals in the area of compulsory acquisition in Queensland, simply because there is not a large number of professionals practising in the area. All compulsory acquisition actions for transport infrastructure proceed through a single piece of State legislation, the Acquisition of Land Act 1967, administered by The Queensland Department of Transport and Main Roads, a government department. As a result, the sample size was limited to the number of individuals involved in compulsory acquisitions associated with that department. They comprised a number of professions including solicitors, departmental officers and valuers working with that department in the area of compulsory acquisition. Of the possible total
224 Jennifer Rowley, ‘Conducting Research Interviews’ (2012) 35(3) Management Research Review, 260. 57
population of interviewees, 40 were approached to participate in the interview, but only 12 chose to respond. The persons who selected themselves therefore did so without any decision by the researcher to include or exclude them. Inclusion was open to every professional associated with compulsory acquisitions by the Queensland Department of Transport and Main Roads in the last decade.
Professional interviewees were interviewed in the earliest phase of the research as part of the process of testing preliminary hypotheses and evaluating exploratory study designs. In conducting these early interviews, the researcher did not seek to optimise statistical inference, which will always be inaccurate when one has only a limited sample size. As Banerjee and Chaudhury explain, in statistics, one draws conclusions from a sample which is meant to represent a whole population. This process, however, has its own inherent problem:
Fieldwork is drawing a random sample from the target population to which the results of the study would be generalized. In actual practice, the task is so difficult that some sampling bias occurs in almost all studies to a lesser or greater degree.225
The current research project surveyed a professional sample and a dispossessed homeowners sample. In order to avoid bias in sampling, it is worth noting the following guideline:
The researcher has (in theory) access to all members of a population x. Every member of the population has an equal and non-zero chance of being selected for the study sample. In other words, they cannot have “no chance” of being sampled.226
As there is no indication that the persons who participated in the research were an unrepresentative sample, there is no indication that the data were collected in such a way that some opinions held by members of the intended population were any less likely to be included than others.227 In each case, but particularly with the professional class, the population is so small that, unless there is an inherent bias (e.g. that people who volunteered to participate were more likely to have a particular opinion than persons who did not), then
225 Amitav Banerjee and Suprakash Chaudhury, ‘Statistics without Tears: Populations and Samples’ (2010) 19(1) Industrial Psychiatry Journal 60. 226 Carl Thompson, ‘If You Could Just Provide Me with a Sample: Examining Sampling in Qualitative and Quantitative Research Papers’ (1999) 2(3) Evidence-Based Nursing 68, 69. 227 A point considered by Amitav Banerjee and Suprakash Chaudhury, ‘Statistics without Tears: Populations and Samples’ (2010) 19(1) Industrial Psychiatry Journal 60, 62 58
the fact that more than one quarter of the target population was interviewed indicates that, although it might be difficult to draw definite conclusions whichever methods of analysis were chosen, sampling bias has been avoided as far as possible.
The qualitative sample of professionals might not be a representative overview of all the different opinions that might be held by the 28 possible members of the target audience who chose not to participate — that choice being the inclusion/exclusion criterion.228 At best, the data gathered from professionals is representative, but only representative of those who chose to participate.229 That said, it is arguable that because I have been active in the same limited area of endeavour for a significant period of time both as practitioner and as a lecturer in the subject at the University of Queensland, I was able to garner a greater number of answers from interviewees than would a person who does not have similar connections in the industry.
The randomness of this sample may be defended on the basis that, as the researcher, I was not to know in advance, do not know now, and have no way of knowing, whether the views expressed by those who chose to answer differed from the views of those who did not. Generalisation is possible because I was able to interview more than a quarter of the target population, and therefore I believe that the test results are valid not only for the persons interviewed, for the entire range of professional opinion.
The professionals interviewed were disproportionately well educated, white, of above average socio-economic status, and less than 60 years old, but this is because most professionals in the area fall into that category. Accordingly, any disparity between the average professional interviewed and the average member of the community, in terms of income, education, gender, race, or level of socio-economic status is not one that renders their answers meaningless. As discussed in the findings, the discrepancy is one possible reason for a difference between the attitude of professionals and the attitude of dispossessed homeowners.
228 Carl Thompson, ‘If You Could Just Provide Me with a Sample: Examining Sampling in Qualitative and Quantitative Research Papers’ (1999) 2(3) Evidence-Based Nursing 68, 70. 229 Kate Kelley et al, ‘Good Practice in the Conduct and Reporting of Survey Research’ (2003) 15(3) International Journal for Quality in Health Care 261. 59
Whilst the data presented are to some extent self-reported, I have found no evidence that persons who are self-selecting are any less truthful, or any less representative of the general population, than persons selected randomly.
Finally, my own opinions and biases in carrying out the observations and interviews with professionals are unlikely to have affected the answers given, because the course of this research changed my point of view about the way dispossessed homeowners should be compensated. My views were very different at the start of the project, and accordingly the views which I developed later cannot have affected the earlier line of questioning. That is to say, far from influencing interviewees, I was instead influenced by them.
3.4 Analogous areas of legal research
Most court cases concerning the quantum of damages in personal injuries cases are an exercise in the methodology of putting a dollar value on the unmeasurable, on the basis of words spoken by witnesses. The question and answer of examination and cross- examination is a stylised form of interview which, in effect, allows judges to place dollar values on people’s stories.
Plaintiffs have been succeeding in claims for pain, suffering and other claims which do not clearly have a dollar value since long before Lumley Smith, in 1872,230 edited John D Mayne’s epic treatise on the law of damages, which was first written in 1856. The cases cited in that treatise predate the modern assessment tools used by health professionals in assessing, for example, the precise amount by which an injury has disabled a person either physically or mentally. Those modern assessments are now used in Queensland in the Civil Liability Act 2003 (Qld) s 61, to assist the court in an award of general damages on the basis of an injury scale which runs from 0 to 100. The relative measurement of pain between person and person can surely only be done on the basis of an evaluation of the interaction between an injured person and his or her treating medical professional.
Generally, that interaction will take place in words, although with respect to a loss of bodily function, it can take place by means of observation of either body functions or sampling of bodily fluids.231 With respect to actions based on pure mental harm, an observation of
230 Lumley Smith (ed), Mayne’s Treatise on the Law of Damages (Stevens and Haynes, 2nd ed, 1872), particularly 351. 231 See for example Anne Mulhall, ‘In the Field: Notes on Observation in Qualitative Research’ (2003) 41(3) Journal of Advanced Nursing 306. 60
behaviour would be helpful, and sampling of bodily fluids would be unhelpful, and whilst there are batteries of psychological tests that rely on closed question and answer sets, much assessment is also based on interviews of affected persons.
I formed the assumption that persons who had undergone the compulsory acquisition process could be interviewed in a similar way, and the qualitative data could be evaluated in a quantitative matter, in the same way that a doctor assesses an injured person for a report to a court. My central premise in conducting these interactions was “that the use of quantitative and qualitative approaches in combination provides a better understanding of research problems than either approach alone.”232
This was not an exercise in reflexive research.233 During the course of the exercise, I attempted to keep my own history, experiences, beliefs and culture separate from the process of the research, so that they would not influence the outcome of the inquiry. Had I used a reflective method, my research may well have taken a very different path, because prior to carrying out the research for this thesis, I was very much of the view that solatium ought to be strictly limited, and I had been involved in at least 700 compulsory acquisitions in Queensland in which solatium had not been paid at all.
3.5 Appropriateness testing
In order to test the appropriateness of the interview and survey questions for disaffected householders, pre-testing was conducted in the form of a pilot study of professionals practising in the area of compulsory acquisitions. This was done because the risk of error is lowered by “the presentation of a questionnaire in a pilot study to a sample of respondents, peers and potential users of the data in order to discover any problems”.234 The pilot study allowed for any issues associated with data collection and data samples to be resolved and ensured data that were collected were appropriate for analysis. No ethical issues arose from the pilot study, and the certificate from the University of Queensland Ethics Committee appears in the appendices to this project.
232 John W. Creswell and Vicki L Plano Clark, Designing and Conducting Mixed Methods Research (Thousand Oaks, California, 2007), 5. 233. Kim Etherington, Becoming a Reflexive Researcher – Using Our Selves in Research (Jessica Kingsley Publishers, 2004). 234 D K V Aaker, Marketing Research (Milton, John Wiley & Sons, 2007). 61
Prior to data collection, consultation with the University of Queensland’s Statistical Consulting Service was also sought.
3.6 Designing and planning the interview
Interviews are generally used in conducting qualitative research, in which the researcher is interested in collecting data or gaining insights into or understanding of opinions, attitudes, experiences, processes, behaviours, or predictions.235
Interviews are generally classified on the basis of their level of structure. At one end of the spectrum are structured interviews, in which standardised questions are asked with the expectation of short answers. At the other end are unstructured interviews, based on a limited number of prompting questions, with the emphasis very much being on encouraging the interviewee to talk at length to the theme.
The most common form of interview is a hybrid of the structured and unstructured interview known as the semi-structured interview. The semi-structured format is sufficiently structured to address specific topics related to the phenomenon under investigation, while leaving space for participants to offer new meanings and ideas to the study. The advantage for this research is that the semi-structured interviews are designed to centre on ascertaining the variables that determine attitudes of homeowners, which are largely unknown. For this reason, a semi-structured interview methodology was incorporated as part of the overall research design.
One of the chief advantages of using interviews is that, whilst data collection (interviewing) might be more demanding than, say, distributing online questionnaires, designing an interview schedule is much easier, and requires much less pre-knowledge than designing a well-constructed questionnaire.236 Interviews are therefore appropriate in cases in which certain key variables are unknown.
The detailed interview has, additionally, been designed to contrast the findings of the professionals experienced in compulsory acquisition practice, with those of individuals who experienced displacement as a result of compulsory acquisition actions. The aim of the survey is to obtain, from homeowners who have previously been subject to a compulsory acquisition action and displaced from their homes, sufficiently detailed responses to allow
235 Jennifer Rowley, ‘Conducting Research Interviews’ (2012) 35(3) Management Research Review 260. 236 Ibid. 62
me thorough investigation of the impacts of a compulsory acquisition and displacement. These responses constitute a primary source. Responses from a population of approximately 100 formally dispossessed owners were sought. A response rate of at least 25 interviews was expected and 32 were achieved.
3.7 Sampling
The first question to consider in selecting potential interviewees is who is in a position to answer the questions or to provide the insights necessary to answer the research question. This type of sampling is described as “purposive sampling”, in which interviewees are selected on the basis of the groups that the research addresses.237
Semi-structured interviews were conducted in cooperation with interviewees selected who voluntarily elected to participate. The questions in the interviews were designed to generate data intended to answer the research questions. The sample of people invited to participate was selected from two populations:
• Homeowners who have previously been subject to a compulsory acquisition action and displaced from their home.
• Professionals who have had significant experience in Compulsory Acquisition practice both here in Australia and overseas.
The detailed interview was designed to contrast the findings of professionals experienced in compulsory acquisition practice, compared to those of individuals who had experienced displacement as a result of a compulsory acquisition action.
The aim of the interview is twofold:
• From homeowners, it is expected that it will be possible to investigate thoroughly the impacts of a compulsory acquisition and displacement from a primary source.
• From professionals, given the geographical spread and experience of interviewees, it will be possible to discover and discuss creative and innovative compensation models and strategies.
237 David Silverman, Doing Qualitative Research: A Practical Handbook (SAGE Publications, 2013) 63
With respect to the need to create an appropriate narrative which was sufficiently robust to provide for the drawing of inferences and conclusions, Rowley observed, “a good rule-of- thumb for new researchers is to aim for around 12 interviews of approximately 30 minutes in length, or the equivalent, such as six to eight interviews of around one hour.”238
Twelve of 40 eligible professionals approached agreed to be interviewed to contribute to this research. The resultant data were expected to provide a sufficient sample for analysis and identification and clarification of variables required in the proposed quantitative survey.
All interviewees were informed of the reasons for the research and that their identities would be kept confidential. No personal names or any such information have been, or in the future shall be, disclosed.
3.8 Design of interview questions
Questions were designed to have interviewees respond to the:
• phenomenon in question
• contextual situation
• actions aimed at dealing with the phenomenon
• consequences of the actions aimed at dealing with the phenomenon.
The practical component is based on grounded theory methodology, as pioneered by Strauss and Corbin. It provides useful tools to learn about stakeholders’ perceptions and feelings regarding a particular subject area.239 I have tried accurately to represent the views of the interviewees, in the context of the interview. The data captured have only been used with the full permission of each respective interviewee.
The first, and most significant categorisation of questions, is into open and closed questions.240 Closed questions are accompanied with answer option to select. The advantage of closed questions is that they are faster for respondents to complete and can
238 Jennifer Rowley, ‘Conducting Research Interviews’ (2012) 35(3) Management Research Review 260. 239 A Strauss and J Corbin, ‘Grounded Theory Methodology: An Overview’, in N Denzin & Y Lincoln (eds), Handbook of Qualitative Research (1st ed, 1994) 273. 240 Jennifer Rowley, ‘Conducting Research Interviews’ (2012) 35(3) Management Research Review 260. 64
contribute directly to a higher response rate.241 Closed questions are more difficult to design, because the researcher needs to know enough about the respondent population to be able to offer sensible categories for each closed question.242
Interview questionnaires are mostly used in conducting quantitative research, in which the researcher wants to profile the sample in terms of numbers (e.g. the proportion of the sample in different age groups) or to be able to count the frequency of occurrence of opinions, attitudes, experiences, processes, behaviours, or predictions.243
There are a number of different approaches to selecting a sample, including probability and non-probability sampling. Probability sampling is a technique in which the sample is gathered in a process that gives all the individuals in the population equal chances of being selected, whereas non-probability samples are selected based on the subjective judgement of the researcher, rather than random selection. Probability sampling is viewed as ideal, because the sample is representative of the population from which it is drawn, and therefore statistical generalisations about the population can be made on the basis of the analysis of the sample data.244
Survey interviewees were randomly selected from a public database of dispossessed homeowners located in southeast Queensland, detailed below. Interviewees remain anonymous and identifying information was not collected.
3.9 Survey method
The main ways of distributing a questionnaire are, face-to-face, mail, email, and the increasingly popular method of the online survey. For this study, the methods chosen were face-to-face and, if required, telephone interviews, dependent on the preferences of the interviewees.
The interviewees were selected on the basis of the following criteria:
• Professionals invited to participate in interviews were from a population of industry practitioners that were involved in the administration of the Acquisition of Land Act
241 A Strauss and J Corbin, ‘Grounded Theory Methodology: An Overview’, in N Denzin & Y Lincoln (eds), Handbook of Qualitative Research (1st ed, 1994) 273. 242 Jennifer Rowley, ‘Conducting Research Interviews’ (2012) 35(3) Management Research Review 260. 243 Ibid. 244 Ibid. 65
1967 on behalf of State Government Constructing Authorities responsible for the delivery of Rail and Road Transport Infrastructure. A total pool of 40 professionals was identified as being eligible to participate. The recorded interviews were transcribed and analysed in terms of the narrative and trend presented, but without any statistical analysis of the answers.
• Dispossessed householders’ names were obtained from Government Gazette, a public record of compulsory acquisition actions in South East Queensland Road and Rail Infrastructure projects between 2008 and 2016, and each person on the list who was contactable was invited to participate. A total pool of 216 potential interviewees subjected to owner occupied full take CA’s were identified.
The interview aimed to understand interviewees’ experiences of the compulsory acquisition process and how the enforced change of residence affected their daily lives, both before and after the change of residence. In order to contextualise their experiences of the compulsory acquisition process, the interview commenced by asking interviewees to describe their interests, circumstances, typical activities, and the effect of the enforced change of residence on their lives. The interview then turned to their experience of the compulsory acquisition process. Also posed were questions based upon results of the detailed interviews, outlined above, around attitudes to property rights, agreement or refusal to move, attitudes toward government, forced displacement, likely losses experienced, attitudes towards the project, time frames and assistance measures expected.
The objectives of surveying homeowners was to identify the attitudes and behaviour toward a compulsory acquisition action undertaken by government and to determine the attributes considered important to the homeowners when faced with forced displacement from their homes.
One issue that was expected to arise was the level of satisfaction under existing compensation legislation and policy, which is based upon market value measures. Questions included:
• Would the owner be satisfied with the payment of market value in exchange for his or her home?
66
• If not, what alternative compensation is needed in order to satisfy the Principle of Equivalence ideals from the homeowner’s perspective?
• Are there any forms of loss suffered which are not compensated for?
• Is market value an objective, unambiguous measure for the determination of compensation for the compulsory acquisition of real property?
• Should homeowners be paid a premium over and above market value?
• If so, how much does that premium need to be to achieve the aims of the Principle of Equivalence?
• What else can be done or provided by government to better compensate homeowners who are displaced to meet the Principle of Equivalence?
Interviewees were asked, “How has the compulsory acquisition process changed your everyday routine and activities?” and were prompted to discuss their typical days and important and valued activities,245 as well as discussing how their lives had either improved, or become more difficult, in that context. There was an opportunity for the researcher to ask individualised questions intended to explore particularly interesting or ambiguous initial responses. In most cases, the final open-ended question asked was: “What additional information would you like to provide to explain these responses?”246
There are several strategies by which qualitative data collected using the designs described can be quantified to create a single comprehensive dataset.247 The set of questions was designed so that a portion or piece of the narrative uncovered would be measured against the research covered in the third part of the literature review, which measured the sense of attachment to place. 248 Interview recordings were transcribed verbatim. Data were analysed according to their form, and themes emerged. This development allowed the researcher to explore both interconnected and distinct aspects of those phenomena, which themes indicated were affecting persons subject to compulsory acquisition more than others, and to
245 Marco Antonsich, ‘Meanings of Place and Aspects of the Self: An Interdisciplinary and Empirical Account’ (2010) 75(1) GeoJournal 119; Hans Skifter Andersen, ‘Explaining Preferences for Home Surroundings and Locations (2011) 22(1) Urbani Izziv (Slovenia) 100. 246 David L Morgan, ‘Practical Strategies for Combining Qualitative and Quantitative Methods: Applications to Health Research’ (1998) 8(3) Qualitative Health Research, 362. 247 Nancy L Leech and Anthony J Onwuegbuzie, ‘A Typology of Mixed Methods Research Designs’ (2008) Quality and Quantity 43(2) 265; Anthony J Onwuegbuzie and Nancy L Leech, ‘On Becoming a Pragmatic Researcher: The Importance of Combining Quantitative and Qualitative Research Methodologies’ (2005) 5(8) International Journal of Social Research Methodology 375. 248 Anthony Onwuegbuzie & Kathleen Collins, ‘A Typology of Mixed Methods Sampling Designs in Social Science Research’ (2007) 12(2) The Qualitative Report, 281. 67
examine the similarities in what occurred to them during that process.249 The identified themes were then measured against the search criteria revealed in the literature review. From the responses, I was able to infer a generalised finding as to, in summary, what occured with the compulsory acquisition process and how it could have been better managed. In generalising responses, I sought to avoid the inherent difficulty in quantitising qualitative data, in that instead of responding to the richness of the human experience, “quantitized data are fixed and one-dimensional; that is, they are composed of a single set of responses prospectively representing a conceptual category determined prior to data collection.”250
The sample size was limited by the number of persons who were willing to be interviewed, that is 32. Queensland has a population only approximately 1.5% of that of the United States, and accordingly the possible sample size was quite small in comparison. However, the research proceeded on the assumption that the sample that had come forward was representative of all persons who were the subject of compulsory acquisitions in Queensland.
The frequency of themes within subsets of the total interviewee population was then enumerated, categorising respondents by age and by socio-economic demographic, using NVivo. Results were compared with the findings in the literature reviewed earlier in this thesis, and in particular with the findings of Antonsich and of Skifter Andersen.251
3.10 Diagrams
I have used diagrams or figures in this research project as a pictorial ‘executive summary’ because I believe that the best arguments are those that can be reduced into simplified diagrammatic form. Those interested to see the justification might then wish to read the full thesis, but for those only interested in a summary of the arguments, aided by diagrammatic representations together with a written summary of my arguments. Whilst this arrangement may be unusual in academic writing, I hope that my ideas will gain the widest possible distribution in the legal fraternity, the planning fraternity, amongst valuers, in government
249 This follows the methodology explored in Jennifer C Greene, Valerie J Caracelli, and Wendy F Graham, ‘Toward a Conceptual Framework for Mixed Methods Evaluation Design’ (1989) 11(3) Educational Evaluation and Policy Analysis, 255. 250 David L Driscoll et al, ‘Merging Qualitative and Quantitative Data in Mixed Methods Research: How to and Why Not’ (2007) 3(1) Ecological and Environmental Anthropology (University of Georgia) 19. 251 Marco Antonsich, ‘Meanings of Place and Aspects of the Self: an Interdisciplinary and Empirical Account’ (2010) 75(1) GeoJournal 119; Hans Skifter Andersen, ‘Explaining Preferences for Home Surroundings and Locations’ (2011) 22(1) Urbani Izziv (Slovenia) 100. 68
and indeed among the general public who are interested. The diagrams and the summary therefore will serve, not as part of the methodology of research, but as the methodology of presentation.
Given the danger to our democracy which exists in the ability of consortia of private companies representing shareholders and investors to dictate land acquisition policy to government, I hope that this thesis, or at least the executive summary, is widely circulated so that the public can be properly informed of the risks every landowner in Queensland faces in the absence of legislative reform.
As Susskind puts it:
[A] major challenge for today's lawyers … [is] to investigate and devise innovative techniques for the provision of legal information, guidance, knowledge and expertise; to develop new ways of meeting clients' needs 252
252 Richard Susskind, The Future of Law (1996) Journal of Information Law and Technology [3]. 69
Chapter 4: Solatium: past and present.
This chapter looks specifically at the question of solatium. As briefly defined in Chapter One, it is a compensation (normally a monetary payment) for pain, suffering and solace. Solatium is not payable in Queensland, and it is argued that it should be. This Chapter will consider how the term is defined and interpreted in other jurisdictions, to consider how it can be used in Queensland.
This Chapter will be structured as follows. First, it will discuss the definition of the concept. Second, the account briefly examines its legislative history, as a feature of the legislation relating to acquisition of land in England, and the various Australian jurisdictions. Third, it examines recent changes to the maximum amount of solatium allowable in New South Wales, and the policy reasons behind that change. Finally, it looks at notable Australian cases concerning grants of solatium, and draws conclusions from the cases studied against the general context of the legislation as it exists in Australian jurisdictions outside Queensland.
4.1 Solatium in other areas of law
The word ‘solatium’ is originally of Scottish origin and now appears in the Damages (Scotland) Act 2011 as applying where a wrongful act brings on an early death, defined as:
[D]amages for pain and suffering ... relating to the victim’s awareness of the loss of expectation of life ... or patrimonial loss that such a victim has suffered or is likely to suffer [before the …] expected date of death ... under the general principles of the common law of delict.
As solatium is not defined in any land acquisition legislation, this Chapter will therefore proceed, as outlined in the preceding discussion of the methodology, to establish a definition by use of rational principles such as analogy from other areas of law such as defamation and negligence.253
There are no secondary sources which discuss the meaning of the specific term solatium in the context of different areas of law. However, plaintiffs have been succeeding in claims for
253 Rudolf A Makkreel, ‘Interpretation, Judgment, and Critique’, in Niall Keane and Chris Lawn (eds), The Blackwell Companion to Hermeneutics (Wiley-Blackwell, 2016). 70
pain, suffering and other loss that is not quantifiable in monetary terms since long before Lumley Smith’s second edition, in 1872,254 of John D Mayne’s epic treatise on the law of damages. This is still the case in Queensland under the Civil Liability Act 2003 (Qld), where, upon the court may award general damages on the basis of an injury scale that runs from 0 to 100.
In Carson v John Fairfax & Sons Limited,255 solatium is referenced and described as a solace for grief, annoyance and internal hurt, rather than a monetary recompense for harm measurable in money. The variety of the matters which, it has been held, may be considered in assessing the quantum of solatium became so intangible and complex that the amount of a verdict tended to be the product of a mixture of inextricable considerations.256 It extended, in the wrongful death claim of Glasgow Corporation v Kelly, 257 to “a claim for lacerated feelings and for the loss of natural support which the deceased afforded or might in future have afforded” — words of Lord Normand, which remind the reader of his Lordship’s earlier opinion, expressed in Sands Devan,258 that “[t]he relation of money compensation to the grief and suffering of a father is necessarily vague and even arbitrary, and the very attempt to measure such suffering by money is pitifully discordant.”
Despite these difficulties expressed by the Courts, a measure of compensation was ultimately awarded. Kelly was cited in McManus (Executrix) v Babcock Energy Ltd259 in which the Court was even able to make a measurement of solatium, couched as a payment in respect of pain and suffering, for the premature and painful death of a victim of asbestos- related cancer suffered whilst in a workplace; a death made all the worse for the victim, according to the court, because the victim knew the circumstances of the contraction of the cancer:
Solatium is in general described as compensation for injured feelings; these include not only the immediate personal grief felt, but also the subsequent continuing sense of loss arising from the deprivation … of a mother's care and affection [or…] of a wife's society and companionship … it is an acknowledgement of having caused grief and pain through fault … it may have in view as an ingredient the laceration of
254 Lumley Smith (ed), Mayne’s Treatise on the Law of Damages (Stevens and Haynes, 2nd ed, 1872), particularly at 351. 255 (1992) 178 CLR 44, 69-70 (Brennan, J). 256 And see Coyne v Citizen Finance Ltd (1990) 172 CLR 211 (Toohey, J). 257 [1951] 1 TLR 345, 347 (Lord Normand). 258 1945 Scots LT 288. 259 1999 SC 569. 71
the feelings of the bereft spouse in contemplating the suffering to which the deceased spouse was exposed before death. There is no doubt that solatium must be substantial in money and not merely nominal.
An allowance was also made for the suffering of the bereft wife, who had to endure the equally painful suffering of her husband’s premature death. The timing of a person’s death does not necessarily have any specific economic ramifications, except that the shorter the period of time of one’s life, the less money one earns or spends. In economic terms, there is no loss to the deceased from a life that is unnecessarily truncated. The law, however, has awarded solatium payments in respect of the clear non-economic loss such an event presents both to the deceased, to those who were reliant upon the deceased, and to those who loved and cared for the deceased.
As the balance of this chapter will show, the law with respect to compulsory acquisitions in several other Australian jurisdictions treats the effect of compulsory acquisition of one’s home in a way similar to the taking of a loved one before that person would have otherwise died.
4.2 Solatium for acquisition of land in other jurisdictions
In Australia, subject to native title claims, absolute ownership to land remains with the Crown, either in right of the Commonwealth or an individual State as the case may be. The highest form of ownership that a person can hold is an estate in fee simple with the Crown retaining the underlying ownership.260
The acquisition of land by compulsory means is vital for the growth and development of all the States and territories in Australia. Acquired land provides the sites for rail links, sewerage and water services, roads, electrical infrastructure and public recreation. Australian land acquisition legislation follows two major consolidating Acts, which were passed in England in 1845: the Land Clauses Consolidation Act 1845 and the Railways Clauses Consolidation Act 1845. These Acts codified the processes for land taking, determining compensation and resolving disputes. Following a commission of inquiry in 1918261 they were simplified – after
260 Michael Stuckey, ‘Feudalism and Australian Land Law: “A Shadowy, Ghostlike Survival”?’ (1994) 113(1) University of Tasmania Law Review 102. 261 The ‘Second Report to the Ministry of Reconstruction of the Committee dealing with the Law and Practice Relating to the Acquisition and Valuation of Land for Public Purposes’ (L Scott, Chairman), Cd 9229 (HMSO, 1918). 72
allowing for the decisions of the various common law courts in the intervening 73 years – in the Acquisition of Land (Assessment of Compensation) Act 1919.
Where land is acquired by compulsion, the compensation provided for is based on the principle of equivalence — that the landowner should be in a position no better or worse than before the land was acquired. The 1919 Act abolished the previous rule of adding a 10% allowance to a compensation payment to recognise that a person has lost land against his or her will,262 although this continues to be the rule in England under the Land Compensation Act 1961 (UK) s5.263
Some Canadian jurisdictions have also adopted it, including Newfoundland,264 Alberta,265 Ontario266 and British Columbia.267 In the United States, the Fifth Amendment to the Constitution prevents, inter alia, private property being “taken for public use, without just compensation.”
With respect to land being taken for private use, the Scott Committee in the UK, reporting nearly 100 years ago, was of the view that private developers — in those days, mainly the developers of railways, which were in private hands - “should not be encouraged to embark on land speculation, or the business of owning and managing property not required for the purposes of the undertaking”.268 The Scott Committee was also of the view that no allowance for the compulsory acquisition of land should be added to the market value, but that there should be fair compensation for consequential injury.269 Any additional value in addition to market value attributable to a special value to the owner is compensable under legislation and common law. The practical requirement of keeping the cost of public works to a reasonable level so as to promote development in the public interest as part of the efforts of post-war reconstruction meant that there was no longer such a great need to provide generous compensation to individuals in order to mitigate resistance to major public works projects.
262 Michael Barnes, The Law of Compulsory Purchase and Compensation (Bloomsbury Publishing, 2014), 7. 263 Barry Denyer-Green, ‘Compulsory Purchase and Compensation’ (Taylor and Francis, 2013), 158. 264 Expropriation Act, RSNL 1990, Ch E 19, s.27 (Newfoundland). 265 Expropriation Act, RSA 2000, c E-13 (Alberta). 266 Ministry of Infrastructure Act, 2011, SO 2011, c 9 (Ontario). 267 Expropriation Act, RSBC 1996, c 125, (British Columbia). 268 The ‘Second Report to the Ministry of Reconstruction of the Committee dealing with the Law and Practice Relating to the Acquisition and Valuation of Land for Public Purposes’ (L Scott, Chairman), Cd 9229 (HMSO, 1918), 21, [54]. 269 Ibid, 23, [61]. 73
The reader of these two reports is disadvantaged in so far as there is no discussion of how the author of the report, or his committee, reached the conclusion as to solatium that they did. It could be that public works were being undertaken by public, rather than private, railway companies; it could be that the fact that those projects provided jobs was generally seen as being of direct public benefit. It could also be that the British Crown’s financial reserves were somewhat depleted after the First World War. This is no idle enquiry, because the position of Lord Justice Scott is now replicated, 100 years later, in Queensland and South Australia alone amongst the other Australian jurisdictions.
In practice, as a result of the Scott Reports, compensation needed only to be based on the assessed market value of the land or interest acquired. The power for an authority to compulsorily acquire land is set out in legislation in each jurisdiction. In each Australian State and Territories apart from Tasmania, Queensland and South Australia, compensation payable to an affected landowner may be increased by such amount, not exceeding either a prescribed capped amount in some jurisdictions or 10% of the market value of the land in others, by way of solatium. This is calculated as what is reasonable to compensate it for intangible and non-pecuniary disadvantages resulting from the acquisition: that is, the same position in England prior to 1919, which acted as a limit on the power of the Sovereign to resume land.270
The development of the restrictions on the right of the Crown to take land in private ownership, and the requirement for compensation when this occurred, were confirmed in 1765 by Sir William Blackstone in his Commentaries on the Laws of England. He described the need for legislative authority for the taking of any land and for “full indemnification and equivalent” (i.e. full compensation) for the land taken, even where the land was taken “for the general good of the whole community” as “the public is now considered as an individual, treating with an individual for an exchange”,271 even “for matters almost unquantifiable in money terms”.272
Accordingly, outside Queensland and South Australia, the Australian practice is that factors relevant to the value of the land to a particular owner who is to be dispossessed are to be
270 Patricia Ryan, Compulsory Acquisition of Land for Local Government Purposes in New South Wales (LLM Thesis, UNSW, 1978), 4, 159. 271 Blackstone, ‘Commentaries, Book 1 – Rights of Persons’, Vol 1, Ch 1, 134, cited in Michael Tugendhat, ‘Liberty Intact: Human Rights in English Law’ (OUP, 2016); and also, in part, cited in R & R Fazzolari Ltd v Parramatta City Council (2009) 237 CLR 603, [41] (French CJ). 272 Patricia Ryan, Compulsory Acquisition of Land for Local Government Purposes in New South Wales (LLM Thesis, UNSW, 1978), 159. 74
taken into account in any assessment of the compensation payable to him or her for the loss of the resumed land.273 A solatium may be ordered where an owner has thrust upon him or her the need to recast plans for the rest of his or her life, in effect, as a result of the acquisition, and is likely to suffer unquantifiable loss and inconvenience as a consequence.
Both statutory provisions and decided Australian cases suggest that a solatium of 10% is frequently provided as a standard form of compensation referable to the inconvenience and disruption inevitably associated with compulsory resumption of land. In Victoria, for example, the Land Acquisition and Compensation Act 1986 (Vic) s.44 concerns solatium274 and relevantly provides that there must be taken into account all relevant circumstances applicable to the claimant, including, but not limited to, the length of time during which the claimant had occupied the land; care and attention lavished on the land to develop it;275 the inconvenience likely to be suffered by the claimant by reason of removal from the land; the period of time during which, but for the acquisition of the land, the claimant would have been likely to continue to occupy the land; the age of the claimant; and where the claimant at the date of acquisition is occupying the land as the claimant's principal place of residence, the number, age and circumstances of other people (if any) living with the claimant.
In NSW, solatium means the compensation to a person for non-financial disadvantage resulting from the necessity of the person to relocate his or her principal place of residence as a result of compulsory acquisition of her or his land, and is payable if the whole of the land is acquired or if any part of the land on which the residence is situated is acquired.276 Solatium therefore is considered an acknowledgement by Government that enforced dispossession and relocation caused as a result of CA is required to supplement Market Value based compensation regimes and forms part of a valid remedy.
In Tasmania, the Land Acquisition Act 1993 s 27 allows the acquiring authority, the Court or an arbitrator to take into account such other matters she or he might consider to be relevant when determining an amount of compensation, so the concept of solatium is not shut off. A similar position prevails in the Northern territory.277 However, in Tasmania there is a further protection for a dispossessed householder: the Land Acquisition Act 1993 s 30 permits a
273 Pastoral Finance Association Ltd v The Minister [1914] AC 1083; Minister for Army v Parbury Henty (1945) 70 CLR 459. 274 Halwood Corporation (in liq) v Roads Corporation [2008] VSC 28 (14 February 2008). 275 King v Minister for Planning and Housing [1993] 1 VR 159,188-9. 276 Land Acquisition (Just Terms Compensation) Act 1991 (NSW), s60(3). 277 Lands Acquisition Act 1978 (NT) Schedule 2, Rule 9 sub rule 2. 75
claimant who owned land and ordinarily used that land for a principal residence, and who as a result of compulsory acquisition has to move to some other principal residence, to obtain compensation on the basis of the reasonable cost of rehousing the claimant at no cost to the claimant, in a suitable residence of at least equivalent standard and location in Tasmania to that which was resumed; additional compensation may be awarded in respect of any hardship that the claimant might suffer as a result of an inability to move to “a suitable residence solely by reason of age, infirmity or want of means.”278 Accordingly solatium is available to dispossessed home-owners, without limit, but under a different name.
Section 55 of the Land Acquisition Act 1989 (Cth) contains an overriding ‘just compensation’ discretion which requires that regard is had to all relevant matters in determining an amount of just compensation in respect of the acquisition. Section 54(1) of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) is couched in similar terms. In NSW, from 1 July, 2017, that Act was amended to replace the word solatium with the expression “compensation for disadvantage resulting from relocation” and fixed the maximum amount of compensation for the disadvantage resulting from relocation to $75,000, indexed annually for inflation.279 The Guidelines280 limit payments to cases in which “a person is required to relocate their principal place of residence as a result of the acquisition. This includes residential tenants.”
Western Australia has two concurrent provisions, similar in scope to the Victorian provisions but, as will be shown in the next part of this chapter, without a cap.281
Solatium is essentially a statutory method of assessing damages which would otherwise flow at common law to a victim in any subsequent civil procedure and, by fixing it either as a proportion of land value acquired or as a maximum amount of compensation, it avoids what would otherwise be a need for losses to be quantified and the justification for these claims to be substantiated. In Australia, solatium clauses are variously constructed so as to enable useful premiums to be paid but still place a reasonable limit on the expectations of affected landholders. The differences in provisions between the Commonwealth, the
278 Land Acquisition Act 1993 (Tas) s30. 279 Land Acquisition (Just Terms Compensation) Amendment Bill 2016. 280 New South Wales, ‘Guidelines - Determination of compensation for disadvantage resulting from relocation’ (Sydney: Central Policy Office, 2017). 281 Land Administration Act 1997 (WA) s 241; Public Works Act 1902 (WA) s 63(c)(i). 76
different States and the territories affect who is entitled to compensation, and the quantum of the amount received.
In introducing the increased limit in New South Wales, the relevant Minister discussed the difficulty in applying a financial figure to what is compensation for non-financial impact when introducing the amending legislation in these terms:
[I]mpacts of land acquisition on families and individuals … losing the family home can be one of the most stressful experiences in life. It has been compared, in some circumstances, to bereavement. People need to relocate, find new schools and build new social and possibly work networks.”282
This adopts the views of David Russell SC,283 which were that no amount of money could compensate a landowner for being dispossessed of their home, and that it was difficult to think of many events in a person’s life that would be more disruptive or upsetting than being dispossessed of the family home.
Russell rejected the idea that solatium was to be a fixed percentage of the compensation figure, because the need for solace to be offered to a homeowner was perceived as being equal, regardless of the value of the home. The figure chosen, however, represents less than 7% of the median cost of a Sydney home, as at the time the amending legislation was passed.284 Further, Russell’s recommendation that all homeowners be compensated on a ‘reinstatement basis’ to ensure they can afford an ‘equivalent’ home was rejected, and under the current legislation, this compensation applies only in ‘limited and specific’ circumstances.285
There were notable omissions from the Russell report. First, although he originally recommended a cap of $50,000 for the maximum solatium, he did not justify it in terms of house prices, nor in terms of the time and trouble it takes to move, and not even in terms of the submissions he had received. He merely recommended that figure as an increase on the previous figure, which was under $28,000 which had been at that level since 1991.
282 New South Wales, Parliamentary Debates, Land Acquisition (Just Terms Compensation) Amendment Bill 2016 (NSW), 20 October 2016, (Duncan Gay). 283 David J. Russell, ‘Review of the Land Acquisition (Just Terms Compensation) Act 1991’ (Sydney: NSW Department of Finance and Services, 2014), 42-3. 284 Jennifer Duke, ‘Sydney Median House Price Hits $1.15 Million: Buying Becoming ‘Out of the Question’, Sydney Morning Herald (Sydney), 20 April 2017. 285 Sean Nicholls, ‘Compulsory Acquisitions: Owners Get More Time, Money but Fairness Questions Remain’, Sydney Morning Herald (Sydney), 18 October 2016. 77
Second, there was little discussion of the submissions received, and it is uncertain even how many of these were received, let alone what points they raised.
Given a median house price today in Melbourne is over $880,000, (2018 Domain Group Report) the average amount of solatium, if limited to 10% under Victorian legislation for houses in metropolitan Melbourne, would be $13,000 higher than the current limit on compensation in NSW. There is no explanation for this discrepancy. However, regardless of the discrepancy, the justification for the position in states other than Queensland and South Australia is clear.
4.3 Notable Australian cases regarding solatium for land acquisition
Solatium is payable over and above the actual damages awarded for provable loss, as a solace for injured feelings and other intangible and non-pecuniary disadvantages. The concept is a broad one, and capable of flexible adaptation over time to changes in community values, covering inconvenience and in a proper case distress caused by the compulsory taking of a person’s land.
In the Victorian case of Roads Corporation v Love 286 it included compensation for the fact that the claimant, a man in his 60s whose family had owned the land for over 90 years at the time of the proceedings and who had himself been working the land, a small farm, for over 20 years:
suffered a marked degree of stress as a result of the acquisition, which he called a ‘nightmare’ for him … [and included litigation which reflected] Mr Love’s deeply felt emotional reaction to the acquisition, which in turn [was] a relevant circumstance in the assessment of solatium compensation.
The Court also examined the amount of time the claimant had spent in litigation, and the stress of that litigation. Given the fact that the acquiring authority had made a fairly low offer of solatium, the Court appears to have found that the litigation undertaken by the claimant was justified. It found that the amount of solatium due was $225,000; as that sum exceeded the cap set out in the legislation, the Court was restricted by the legislation to a maximum of 10 percent of the market value of the 25.62 hectares of land actually acquired, or
286 [2010] VSC 537, (2010) 179 LGERA 113. 78
$185,571. The Roads Corporation had offered approximately half that sum, without addressing the ties between the claimant and the land claimed in its argument.
Therefore, whilst questions of proportionality to market value are not necessarily irrelevant, there is no necessary relationship between market value and solatium apart from the existence of an upper limit in legislation tying solatium to land value.287 Similarly, in the Western Australian case of Cook v City of Stirling,288 the plaintiffs had suffered unquantifiable loss and inconvenience by reason of the resumption of the land for a roadway, and that was a sufficient basis for the exercise of a discretion by the Supreme Court of Western Australia in their favour for solatium pursuant to s 63(c)(i) of the Public Works Act 1902 (WA). In that State, the 10% cap:
may be departed from when the court in the exercise of its discretion concludes that the special circumstances of a particular case are such that the application of the norm in those circumstances will lead to an inadequate result. This is essentially a question of fact for the court.289
Solatium is not limited to individuals, and it is not limited to homeowners. In another Victorian case, Secretary to the Department of Business and Innovation v Murdesk Investments Pty Ltd,290 the claimant was a land development company, dispossessed of land by an acquisition for the purposes of a major infrastructure project. At hearing, it contended that the circumstances that warranted an award of solatium were largely related to the frustration of its commercial objectives and opportunities, and to the manner in which the acquisition authority dealt with Murdesk in relation to relocating a particular piece of infrastructure to the subject land.
The considerations of the relevant legislation291 did not point to an award of solatium to a property developer, but were instead directed to the position of individual claimants who have been divested of land or property to which they have an emotional attachment and/or whose circumstances made it difficult to move house.
287 March v City of Frankston [1969] VR 350,356; James v Swan Hill Sewerage Authority [1978] VR 519, 524. 288 (1991) 4 WAR 469. 289 D’Amico v Shire of Swan-Guildford [1969] WAR 183. 290 (2012) 191 LGERA 351 (20 August, 2012, Emerton, J). 291 s 44(2) of the LAC Act. 79
However, the legislation did not preclude an award of solatium to a property developer “in circumstances where it was a family run business, and the land in question is of particular importance to it or the acquisition in question has been handled so as to give rise to particular worry, trouble and nuisance.” Interestingly, the acquiring authority offered $100,000 in solatium, even though the claimant was actually in the business of buying and selling land.292 In considering the appropriate quantum of solatium, Murdesk submitted that, given intangible concerns of worry, trouble and nuisance arising from and in the context of the acquisition of the subject land, it was “not unreasonable to presume that a sole director managing a family company for the benefit of his children can be assumed to feel worries, troubles and nuisance more acutely than a large corporation that is in the business of land development.” 293
The Court accepted the submission that $100,000 was an adequate figure for solatium. The interesting point, from the Queensland perspective, is that the court allowed any amount of money at all. This move reflects that the Victorian law is without limit, as compared to the law in NSW at the time, where the figure would have been capped at under $25,000. In the NSW case of Robertson v Commissioner for Main Roads,294 the resuming authority unsuccessfully submitted that a claim for solatium under the then-existing legislation was confined to an allowance for the nuisance and inconvenience of having to find, and move to, a new residence. It further unsuccessfully submitted that no allowance could be made for subjective and imponderable factors such as distress and anxiety caused by the loss of the family home, since it was an environment of non-monetary value to the landowner, a point which had been previously decided against the Commissioner in Robertson v Commissioner for Main Roads.295 In each case, the maximum amount permitted by the legislation for solatium, at the time $25,000, was awarded. Even when an obligation was imposed on a dispossessed householder to relocate from an unapproved and substandard residence, in Bergman v Holroyd Municipal Council,296 an amount of $1,000 was allowed for solatium.
In Goold v the Commonwealth297 the difficulty was the context of the phrase, “the needs of an acquiring authority” in the Lands Acquisition Act 1989 (Cth), s 59(1)(c), which was held
292 (2012) 191 LGERA 351, 464 (Emerton, J). 293 (2012) 191 LGERA 351, 464 (Emerton, J). 294 Robertson v Commissioner for Main Roads (1987) 63 LGRA 428 (Cripps, CJ). 295 (1987) 63 LGRA 419. 296 (1988) 66 LGRA 68. 297 (1993) 42 FCR 51. 80
not to restrict the operation of the Act to the use of the land for public purposes because of the wording of the relevant state planning scheme.
4.4 Discussion
This is not a time of post-war reconstruction, and the situation with respect to the provision of infrastructure for public purposes is arguably far closer to the situation of private railway companies operating in Victorian England than it is to the provision by Public Works Departments as part of a national reconstruction effort in the period immediately after the Scott Reports.298
It is argued that the desire of private-public partnership consortia to acquire land for the delivery of transport infrastructure in 2018 is profit driven, similar to the railway tycoons and their railway companies 100 to 150 years ago. Accordingly, there is little justification, other than the maintenance of the public purse or political gain, for the adoption of the view of the Scott committee over the view of Mr Russell, expressed nearly 100 years later and at a time when the provision of infrastructure was again being, in the main, orchestrated privately.
In terms of policy, it is now better understood that forcible removal from one’s home can cause substantial distress and discomfort, similar to the loss of a loved one. Further, governments are not operating against the backdrop of a time in history when the strictures of war had caused pain and suffering to an entire population, The word solatium is used in both contexts, and I argue that it is used in both contexts for the same reason; that is, it describes exactly the same sort of payment for exactly the same sort of loss.
This is a perfect example of the use of hermeneutics discussed in the methodology section of this research. The word solatium is insufficiently defined with respect to one common usage. Let us, therefore, examine where else in the broad literature of the law the same term might be found. It is found in respect of both defamation, and wrongful death. What unites these three disparate areas of law?
It might be said that, in each, there is an attempt to quantify the unquantifiable in respect of heads of loss which cannot be neatly summed up in longhand. More prosaically put, as was
298 The ‘First Report to the Ministry of Reconstruction of the Committee dealing with the Law and Practice Relating to the Acquisition and Valuation of Land for Public Purposes’ (L Scott, Chairman), Cd 8558 (HMSO, 1918); The ‘Second Report to the Ministry of Reconstruction of the Committee dealing with the Law and Practice Relating to the Acquisition and Valuation of Land for Public Purposes’ (L Scott, Chairman), Cd 9229 (HMSO, 1918). 81
demonstrated in this chapter by Lord Normand’s judgements, there is an attempt to quantify the value of the laceration of feelings. Earlier in this chapter, it was argued that the laceration of feelings was dealt with in other areas of law, such as defamation and personal injury, with substantial awards in respect of each being given in Queensland under heads of damage including that of pain and suffering.
Since the source of solatium funding could well be the consortia of Private Public Partnership providers of that infrastructure, the argument as to the justification of the public purse fails, and the position of the Queensland legislature is, in view of the preponderance of contrary legislation in other Australian jurisdictions, and the decided cases from those jurisdictions, untenable.
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Chapter 5: Perspectives on the quantum of damages for CA
As discussed in Chapter One, the central principle governing the award of damages at common law is that they are compensatory.299 This chapter will build on previous ones by discussing the application of alternative quantum of damages models which could be applied to compensate those whose houses are resumed by means of compulsory acquisition. In Part 5.1, it examines the history of compulsory acquisition. In Part 5.2, it examines the history of the provision of infrastructure. In Part 5.3, it analyses the idea of compensation under the Acquisition of Land Act 1967 (Qld), which is required to be both fair and adequate.300 This must be applied with respect to all matters which might fairly and reasonably be considered either arising naturally, or which might reasonably be supposed to have been something that might have been fairly contemplated as the probable result of the action or omission which gave rise to a legal claim.301 It explores the idea that “fair and adequate” means one thing where the compulsorarily-acquired land is intended for a project which benefits land-owners in the area, including the subject land-owner, in an immediate and material sense. For example, bringing a road or rail link as a state-owned asset to a rural property.302 Another instance could possibly include when the subject land-owner is an absentee and the land is part of a slum, targeted for redevelopment for the provision of affordable housing by a state-owned enterprise;303 but something different when driven by private infrastructure proponents for private gain.
The term ‘Principle of Equivalence’ (PoE) has generally attained the status of mantra in determinations of land value. On that basis, I will investigate the development of the principle, first enunciated by Blackburn in Livingstone v Rawyards Coal Co.304 Surprisingly (for land valuers), that is not a case dealing with a dispute over land acquisition, but a dispute over stolen coal.
It might come as even more of a surprise for valuers that the second half of the paragraph of Blackburn LJ’s judgement, the half usually not quoted in land valuation cases, starts with
299 Johnson v Perez (1988) 166 CLR 351, 355. 300 Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64, 116 (Deane J). 301 Hadley v Baxendale [1854] EWHC Exch J70 (1854) 9 Exch 341, 156 ER 145, p. 151; Golden Strait Corporation v Nippon Yusen Kubishika Kaisha [2007] UKHL 12, [29]; Commonwealth of Australia v Amann Aviation Pty Ltd (1991) 174 CLR 65, 80 (Mason and Dawson JJ); 98 (Brennan J) Wenham v Ella (1972) 127 CLR 454, 471. 302 As will be discussed in Part 2 of this Chapter, in reference to Queensland’s road-building efforts. 303 As will be discussed in Part 2 of this Chapter, in reference to the building of “Homes Fit for Heroes” in the aftermath of the First World War in England. 304 (1880) 5 App Cas 25. 83
the words, “That must be qualified by a great many things which may arise — such, for instance, as by the consideration whether the damage has been maliciously done”.305 This therefore alludes to the possibility that there might be factors, other than those which are measurable, which might be included in the quantification of Principle of Equivalence in respect of any particular piece of land.
Because I argue that the matters giving rise to a legal claim with respect to the injuries suffered by the landowner include non-financial ones, and other matters related to the owner rather than to the land itself, this section will also summarise and develop further the concepts discussed in the literature review in Chapter Two,306 and build on the differing approaches to solatium in Queensland as outlined in Chapter Four. It will then demonstrate, that, given the literature is reasonably clear, the reasons why solatium might be payable in general and the circumstances leading to its payment in any particular case, as set out in both Chapter Four and this Chapter ought to be considered by any authority, or any private developer, which considers the compulsory acquisition of land in Queensland.
This section will further discuss the development of the distinction between pecuniary and non-pecuniary loss in a personal injuries case,307 for consequential loss where recoverable loss transcends normal loss, for example in contract cases,308 and also in respect of matters such as damage to one’s reputation, disappointment and distress,309 and wrongful dismissal from employment. Part 5.4 discusses human rights aspects, and Part 5.5 provides conclusions.
5.1 The legal origins of compulsory acquisition legislation
The concept of compensation in Australia was inherited from its legal origins in the United Kingdom. With the British settlement of Australia came the adoption of the Crown land doctrine of tenure where “Every Acre of land in the country was held by the King”.310
Upon settlement of the colony of New South Wales in 1788, ownership of all land within its specified boundaries was vested in the Crown. At this time, the laws of England adopted by
305 (1880) 5 App Cas 25, 39 (Lord Blackburn) 306 See page 38, above 307 See eg Florida Hotels Pty Ltd v Mayo (1965) 113 CLR 588. 308 Hadley v Baxendale (1854) 9 Exch 341. 309 Baltic Shipping Co v Dillon (1993) 176 CLR 344. 310 Edward Burn and John Cartwright, Cheshire & Burn’s Modern Law of Real Property (Oxford University Press, 2011). 84
the colony in regard to land acquisition consisted of a “miscellaneous number of statutes empowering the Crown to take land”.311 This legislation, whilst being location- and purpose- specific, did provide a process through which to assess and make payment of monetary compensation.
This piecemeal legislative framework established the basis of land compensation law for the colony of New South Wales and provided that, “property could not be taken by the Crown otherwise than by virtue of parliamentary legislation”, and “compensation was not assessed unilaterally by the Crown but was the subject of determination by an independent body” .312 One of the first adaptations of these principles occured when in 1810, Governor Macquarie directed that the acquisition of any premises for the establishment of the Sydney Street Plan be “replaced at public expense or a monetary compensation allowed to the proprietor”.313 The Sydney Street plan comprised works to improve traffic efficiency and required significant realignment of the road network. The effect was the requirement to acquire private property interests for a public purpose for the first time in the colony’s history.
The Sydney Water Supply Act 1833 (NSW) was the colony’s first public utility infrastructure legislation that provided for the compulsory acquisition of private land interests. The purpose of the Act was to facilitate the construction of a water tunnel between Alexandria and Sydney. The Act provided that dispossessed owners were entitled to “reasonable compensation” for the encroachment of the tunnel, and access by officers to repair or extend the tunnel at any time. Further, the Act went on to stipulate that compensation was to be determined through the appointment of an independent assessor.
The Roads and Street Act 1833 (NSW) followed soon after. It provided for the opening, construction, alteration and improvement of roads within the colony. The Act contained further detailed provisions relating to procedures, timeframes and process concerning the determination of compensation including, for the first time, a right of dispute to the courts. Various other Acts followed with the progression and growth of the colony including Acts facilitating the construction of numerous public utilities, tramways, railways and bridges.314
311 David Brown, ‘Land Acquisition’ (Butterworths,1972). 312 F M Bladen, Historical Records of NSW: VII Bligh and Macquarie (Sydney: Government Printer, 1901). 313 Ibid. 314 For example, An Act to make provision for construction by the Government of Railways in the Colony of New South Wales (18 Vic. Act No.40)(NSW)
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The chronology of the law concerned with compensation for the compulsory acquisition of property rights discussed in the preceding chapter highlights the importance of the preservation of property rights in our society. The fact that the preservation of property rights was fundamental in some of the most significant pieces of international law315 is testament to its importance as an underlying pillar of our modern day democratic society.
In Australia, property ownership rights are limited by the principle of limited sovereign rights. That is, ownership is not absolute. The Crown, in the granting of the subsequent ownership tenure, preserves certain rights, one of which is the power to take back the land. 316The power of the Crown to exercise this right is subject to two broad conditions:
• The land taken must be for a public purpose; and
• The dispossessed owner must receive fair compensation.317
The Australian Constitution318 contains provisions dealing with this principle:
The acquisition of property on just terms from any State or person for any purpose for any purpose in respect of which this Parliament has the power to make laws.
In 1859, Queen Victoria proclaimed the establishment of the colony of Queensland enabling it to enact its own legislature. The first Act that contemplated the acquisition of private land for public purposes and associated compensation provisions was the Moreton Bay Tramway Act 1861 which facilitated the construction of a private tramway from Ipswich to Brisbane city. The Act allowed the private company compulsorily to purchase land. The price was to be fixed by agreement where possible, but if a dispute arose, that compensation was to be determined by a Justice of the Supreme Court.
The Moreton Bay Tramway Company went bankrupt before construction was completed. Subsequently the Railway Act 1863 was enacted. This monumental piece of legislation
315 See generally Ran Hirschl, ‘Negative" Rights vs. "Positive" Entitlements: A Comparative Study of Judicial Interpretations of Rights in an Emerging Neo-Liberal Economic Order’, (2000) 22 (4) Human Rights Quarterly 1060. So committed was the United States to the concept of the preservation of property rights, as a principle of international law, that Congress refused to nationalize Cuban property despite the prior nationalization of property owned by the Cuban revolutionaries: Alan C. Swan, ‘Act Of State at bay: a plea on behalf of the elusive doctrine (1976) 5 Duke Law Journal, 807, 831 316 The common law position in England appears in Wildtree Hotels Ltd v Harrow LBC [2001] 2 AC 1. 317 The common law position is stated in R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] 2 WLR 1389, which case also tackles human rights issues. 318 Constitution of Australia, S. 51 (xxxi). 86
established the following fundamental principles of Queensland’s compulsory acquisition legislation that survive to this day. It provided power to:
• enter and remove materials with compensation for damages; • resume with agreement of owner; etc • purchase with agreement of owner • determine compensation through arbitration • pay compensation to tenants • reserve rights to repurchase in event of resale; and • take and pay compensation for temporary possession.
Along with the establishment of the Queensland Colony came the well-established doctrines of compulsory acquisition law. Without an express term in its two constitutions ie. Colony and State, the State of Queensland has never been proven to be constitutionally bound to acquire property on “just terms” as enshrined in Australia’s Commonwealth Constitution. Sturgeon and Pitt-Walker319 have argued that the Queensland Constitution Acts require the Parliament of Queensland to legislate for the “good government” of Queensland, a restriction which at common law incorporates, they argue, the freedoms set out in the Magna Carta, and those rights won during the First English Civil War by individuals affected the activities of private providers of drainage infrastructure.320
With regard to Queensland, the legislation adopted at the time of its formation in 1859 was based on the English Law that prevailed at that time, by virtue of the Australian Courts Act 1828 (UK). As a result, each State has its own individual sovereign legal rights derived from the United Kingdom. Whilst States are not bound by the Australian Constitution, they have no more power to acquire property on any terms than has the British Parliament which created them.321 However, Brown argues, contrary to Sturgeon and Pitt-Walker’s position,
319 John Sturgeon and Stephen Pitt-Walker, ‘Compulsory Acquisition, Is it constitutional in Queensland?’ (2018) Alternative Law Journal (forthcoming) 320 Christopher Hill, ‘The World Turned Upside Down: Radical ideas during the English Revolution’, (Viking, 1972). 321 John Sturgeon and Stephen Pitt-Walker, ‘Compulsory Acquisition, Is it Constitutional in Queensland?’, forthcoming paper (2018). 87
that, “it is possible for an Australian State to pass legislation acquiring land on just or unjust terms.”322
While there is no constitutional obligation for States to acquire and compensate on ‘just terms,’ the commitment to the principle has featured in Queensland’s laws since the 1860s, although Queensland law does not currently contain the concept of solatium. However, at the time of the formation of the colony of Queensland, solatium at the rate of 50% (far higher than the 10% rate used in Victoria) was allowed in England to compensate for the “indignity of compulsion”. 323
5.2 Heads of compensation
Under Australian federal law provisions, property owners dispossessed of their property are entitled to claim compensation under a number of headings:
(i) Market Value (i) Special Value (ii) Severance (iii) Injurious Affection (iv) Disturbance (v) Reinstatement (vi) In jurisdictions other than Queensland324 and South Australia, Solatium.
This section will investigate the origins and principles of each head of compensation to determine its contribution to satisfying the compensatory Principle of Equivalence.
(i) Market Value
The origin of the doctrine of market value in Australia is found in the landmark case of Spencer v Commonwealth,325 which provides the rule known as the “Spencer Test”. It was established in the High Court that market value was defined as the price which a property could be expected to realise if sold by a willing but not anxious seller to a willing but not
322 David Brown,’ Land Acquisition’, (Butterworths, 1972). 323 Peter Karsten, Between Law and Custom, Cambridge University Press (2002) 324 Acquisition of Land Act 1967 (Qld). 325 (1907) 5 CLR 418, [1907] HCA 82 (29 October 1907). 88
anxious buyer at the date at which the value is required to be ascertained. 326 Thus, it is required to visualise a hypothetical scenario of the ideal sale whereby both parties to the transaction are prudent, well informed and uninfluenced by any abnormal factor that would deprive the sale of weight as a criterion of value. The principles established in this case form the basis for the assessment and definition of market value to this day.327
The issue that arises when utilising this definition for the assessment of compensation for the compulsory taking of land is that the hypothetical application of the presence of a willing seller to the transaction is flawed. The existence of a willing buyer and a willing seller is purely hypothetical, as the dispossessed party is not necessarily complicit to the transaction. Compensation for Market Value as a head of compensation is payable in the form of monetary payment.
(ii) Special Value
The concepts of Market Value and Special Value to Owner are often considered to be equivalent. However, if the land has a special value to the owner over and above the market value, the Privy Council decided, in Pastoral Finance Association Ltd v Minister,328 that an owner was entitled to be compensated for what the land was worth to him or her. It should be noted that the concept of Special Value as determined by the Privy Council arises because of a special use to which the owner puts the land, rather than the land having any sentimental value.329
The recognition that a property may have a special value to the owner in excess of the market value is established by the existence of unique circumstance personal to the owner of the land and not available to a hypothetical purchaser. This is described as:
The fair market value plus special value will equal the total value to the dispossessed owner. This may be expressed briefly as the price that the
326 (1907) 5 CLR 418, 421. 327 See for example Leichhardt Council v Roads & Traffic Authority of NSW [2006] NSWCA 353; AMP Capital Investors Ltd v Transport Development Corporation [2008] NSWCA 325. 328 [1914] AC 1083. 329 Pastoral Finance Association Ltd v Minister [1914] AC 1083. 1088
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dispossessed owner would have been prepared to pay for the property taken rather than lose it.330
Special value can be simply expressed as the additional value which a purchaser is prepared to pay, 331 that reflects the existence of unique circumstances such as potential economies of scale, reduction in competition, or the securing of a source of supply or outlet for products, and which is unique to that purchaser. The existence of this special value means that the purchaser is willing and able to pay over and above the value that other purchasers are prepared to pay, i.e. a consumer / producer surplus. An example might be that the site being acquired is a retail business and the owner of the business also occupies the adjoining site where the goods are manufactured. The claimant may value that site over the market value due to the advantage of operating from the adjoining site.
The concept of Special Value as a head of compensation is to assess compensation from the perspective of being placed in the dispossessed owner’s shoes rather than that of a hypothetical purchaser’s perspective. Compensation of Special Value as a head of compensation is payable in the form of monetary payment.
(iii) Severance
The head of compensation for Severance comes about as a result of the loss suffered as a result of the acquisition of partial land holdings.332 The physical severing and disuniting of resumed land can adversely affect the owner’s remaining or balance land holdings. Severance damage is directly related to the damage incurred to the balance area lands as a result of the severing of the parcel.333
Severance is normally associated with another head of compensation known as Injurious Affection. Put simply, the loss associated with Severance is a direct result of the excision of the land and its impact on the balance area.334 The Injurious Affection head of compensation also applies to the balance area in that it will have an impact on the balance areas, with any effects resulting from the use of the actual lands taken. The concepts of both Severance
330 Rudolph Rost and Henry G Collins, Land Valuation and Compensation in Australia 2nd Edition (Australian Institute of Valuers, 1978). 331 Spencer v Commonwealth (1907) 5 CLR 418, 432 (Griffith, CJ) 332 Cooke v Secretary of State for the Environment, (1973) 27 P & CR 234 333 See, for example, Mir Bros Unit Constructions Pty Ltd v Roads & Traffic Authority of New South Wales [2006] NSWCA 314 334 See for example, State of Queensland v Baker Superannuation Fund Pty Ltd [2018] QCA 168 90
and Injurious affection are theoretical. An example might be that Severance results in the creation of two parcels of farmland used for dairying. One of the retained parcels no longer has access to the dairy facilities due to severance by a highway. The land therefore suffers a loss in value. In practice, it is rarely necessary to distinguish these heads of compensation individually as they occur and are assessed as concurrent events.335 Compensation for Severance as a head of compensation is payable in the form of monetary payment.
(iv) Injurious Affection
As discussed in the previous section, Injurious Affection as a head of compensation can be defined as “some depreciation in the value of the retained land due to the expressed intention of the acquiring authority as to the purpose for which the land is acquired.”336 ‘Injurious affection’ provides compensation for the “adverse effect of the activities of a resuming authority upon a dispossessed owner’s land”. Essentially, injurious affection involves damage to, or a decrease in the value of, any land retained by the claimant that is caused by the scheme or the purpose of the acquisition. It can include, but is not limited to:
• physical damage to the retained land; etc • limitations on the activities on, or the use of, the retained land • interferences with the amenity or character of the retained land • things that may deter purchasers from buying the retained land • things that increase the expense of using the retained land • impositions on title
This reduction in value is assessed concurrently with any Severance compensation. Compensation of Injurious Affection as a head of compensation is payable in the form of monetary payment.
(v) Disturbance
Disturbance as head of compensation337 is provided to enable the claim of all things consequential and directly associated with the compulsory talking of land. The interpretation
335 See, for example Frederick Powell & Son Ltd v Devon County Council [1979] RVR 127 336 David Brown, ‘Land Acquisition’, (Butterworths, 1972). 337 Acquisition of Land Act 1967 (Qld) S 20(1)(b). 91
in Australia limits its application to monetary costs associated with relocation and includes338:
• legal, valuation and other professional fees relating to the compensation claim
• the purchase of a replacement residence (or replacement investment residence), stamp duty, costs regarding the release of existing finance facilities and entering into new facilities, legal fees and other financial costs (except taxation liability)
• removal costs
• utility connection and relocation fees
• other reasonably incurred financial costs that are a direct and natural consequence of taking the land
• loss of profits due to business interruption
• other economic losses and costs reasonably incurred that are a direct and natural consequence of taking the land.
Clearly, additional scope exists to expand the heads of compensation for disturbance to encompass additional costs that are a consequence of land acquisition. Further, where only some of an owner’s land is resumed, an increase in the value of retained land should not be offset against a loss attributable to disturbance.339 Brown summarised this long-standing view of the legal attitude towards Disturbance items as a head of compensation as follows:
It would seem that the courts are not prepared to assess hardship, inconvenience, pain, nervous shock or suffering, under separate heads or as part of a claim for disturbance. Disturbance is concerned with the sum of money which will enable the owner to recover known and identifiable expense.340
Compensation of Disturbance as a head is payable in the form of monetary payment and direct provision of services.
(vi) Reinstatement
338 Acquisition of Land Act 1967 (QLD) S 20(5) 339 Mir Bros Unit Constructions Pty Ltd v Roads & Traffic Authority of New South Wales [2006] NSW CA 314. 340 David Brown, ‘Land Acquisition’, (Butterworths, 1972). 92
Reinstatement as a principle is concerned with restoring the dispossessed owner of land so that compensation is awarded on the basis of providing an equivalent place for the same use, rather than on the basis of market value. The concept that compensation can go beyond that of monetary payment related to market value of land elements is addressed by Scott J in Horn v Sunderland Corporation as follows:
The principle of compensation will include in the price of the land, not only its market value, but also personal loss imposed on the owner by the forced sale, whether it be the cost of preparing the land for the best market then available, or incidental loss in connection with the business he has been carrying on, or the cost of reinstatement, because otherwise he will not be fully compensated. The statutory compensation cannot, and must not, exceed the owner’s total loss . . . [as this] will transgress the principle of equivalence which is at the root of statutory compensation, the principle that the owner shall be paid neither less nor more than his loss. 341
(vii) Solatium
Whilst not legislated for in Queensland or South Australia, solatium features in other States’ compulsory land acquisition legislation.342 The nature of solatium was explained in Chapter Four. It relates to items which are incapable of being assigned a tangible value, those items identified in Chapter Two as being matters of attachment. As will be explained later in this Chapter, it is a similar concept to the compensation payable for improper treatment in terms of one’s reputation343 or one’s employment.344 Solatium is a principle that quantifies factors which are difficult even to put into words: the loss of security and the feeling of powerlessness as one’s home of so many decades is torn down by a bulldozer; the feeling of loneliness of forced relocation to a new suburb; problems children might encounter when changing schools, or homeowners themselves in having to find jobs closer to their new homes, all matters borne out in the interviews in Chapter Six.
These grounds for compensation fall outside the other areas mentioned, and, as the interviews in Chapter Six and subsequent discussion based on them demonstrate, too many Queenslanders have been the victims of to many improprieties by developers, matters which
341 Horn v Sunderland Corporation [1941] 2 k.b. 26 342 See for example, s.44 of the Land Acquisition and Compensation Act 1986 (Vic). 343 That is, damages for defamation, whereby a value is put on the intangible nature of a reputation 344 that is, statutory compensation for unfair dismissal, whereby a value is put on the intangible value of having a job. 93
cause irreparable harm yet which could have been easily prevented either by additional financial benefit by way of solatium, or by non-financial support which might be provided equally as a solace, and therefore possibly under the same heading.
5.2 Historical background of the provision of infrastructure
The purpose of this section is to chart the history of the provision of private infrastructure, particularly of water and railway infrastructure, in England prior to the settlement of Queensland, and of road and railway infrastructure in Queensland from the time of the settlement to the current day.
Infrastructure was not always provided by private developers or for the generation of private profit; the Scott report arose out of the need for the British Government to alleviate slum housing in the aftermath of the First World War,345 a goal it met by using state-owned enterprises.
The historical background is for the purpose of setting a scene against which contemporary practice in payment of damages for compulsory acquisition, in matters involving private devlopers, might be contrasted. The Scott report arose at a time with the British State was moving from private to public infrastructure provision,346 and the “indignity of compulsion” may well have diminished because expropriation was no longer directly for the purposes of providing a railway owner or other private developer with profit.347 Accordingly, as this is a thesis in law and policy, but not history, a few standard texts are used in setting that scene.
A. England The list of charitable uses in the preamble to the Statute of Elizabeth of 1601 included the repair of bridges, ports, havens, causeways, churches, sea banks, and highways.348 Much of this work had previously been funded by forms of local land taxation, and in particular the drainage of farmland by canals was superintended by local abbeys, such as that headed by Bishop Morton, around 1500, funded by rates. The office of Comissioners of Sewers
345 UK, Parliamentary Debates, House of Commons, 7 April 1919, 1766 (Dr. Addison) 346 Ann Bond, Working-Class Housing in Plymouth, 1870-1914’ (Master of Research in History Thesis, University of Plymouth, 2014) 347 Ken Hoole, ‘Rail Centres: Newcastle’, (Littlehampton Book Services, 1986) Ken Hoole, A Regional History of the Railways of Great Britain: Volume IV The North East. (David & Charles, 1974). 348 (1601) 43 Eliz. I, c.4, following on from (1597) 39 Eliz I, c.6. 94
appeared in around 1400, and also levied rates.349 Commercialisation during the Tudor period required more rapid drainage, so that drained pastures could be enclosed for greater profit. “Dry pasture is essential for sheep, and the Fens made excellent pasture if the danger of floods could be banished … [so] By the terms of the General Drainage Act of 1600, lords of manors and the majority of commoners in any common fen ... might bargain and contract part of such fens to any person or persons who would undertake 'the draining and keeping dry perpetually' of them.” 350
Thus the provision of private infrastructure was born in England. The Statute of Sewers authorised Commissioners of Sewers to undertake flood defences broadly conceived, and gave them extensive powers to fulfil this remit. They could make individual decisions concerning repairs that were needed to river banks, sea walls, streams, ditches, gutters and the like, and apportion the costs.351 As Commissioners of Sewers, the Board of the Bedford Level Corporation, for example, could tax the whole, or any part, of the Bedford Level for special drainage purposes, subject only to the provision in the Statute of Sewers of 1532 that direct benefit should be the criterion for liability to any rate.
This caveat might explain Blackstone’s views of private property, and why the concept of water supply plays such a central part of those views. Persons through whose land water flowed were not permitted to keep it, but, after using it, had to return it to a watercourse.352 The private resumption of a public asset, or of anybody else’s asset, was contrary to the common law as Blackstone saw it. This interpretation mirrors the writing of the great theorist of the Glorious Revolution in England of 1688, John Locke, seen by many as the creator of the political theory that governs the modern liberal democratic state, who wrote that “law teaches all mankind who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty or possessions…”.353
349 William Page, Granville Proby and S Inskip Ladds (eds) A History of the County of Huntingdon: Volume 3 (Victoria County History, London, 1936) 249-290. 350 Report and Estimate on the improvement of the Drainage and Navigation of the South and Middle Levels (1810) 351 Robert Callis, The Reading of the Famous and Learned Robert Callis, Esq., Upon the Statute of Sewers: as it Was Delivered by Him at Gray's Inn, in August, 1622, (Scholar Select, 2016). m 352 Edwyna Harris, ‘Scarcity and the Evolution of Water Rights in the Nineteenth Century: the Role of Climate and Asset Type’, Department of Economics Discussion paper 45/10, (Monash Uni, 2010) 353 John Locke (II. 2. 6) cited in Phillip Abrams (ed), John Locke, Two Tracts of Government (Cambridge University Press, 1967). 95
Therefore, when the great railway mania came to England in the 1840s, it is no surprise that landowners demanded, and received, a premium over and above market value when a private railroad company sought to acquire their land.354 These Railways were privately owned infrastructure and were not at the time Government assets or interests, Governemt simply passed legislature to facilitate development. In 1846, more than 271 Acts of Parliament were passed, each incorporating new joint stock companies to build, own and operate a railway. In turn, these private companies built, in only three years, a length of railway equivalent to approximately 60% of the current length of railways in the UK at the present day. These railways remained in private hands until they were nationalised, into British Rail, in 1948.355 Until the amendments brought about as a result of the reports of the Scott Committee,356 purchasers of land by private railways were governed by the Land Clauses Consolidation Act 1845 (UK)357 which provided, inter alia:
In estimating the Purchase Money … to be paid by the Promoters of the Undertaking … regard shall be had by the Justices … not only to the Value of the Land to be purchased or taken by the Promoters of the Undertaking, but also to the Damage, if any, to be sustained by the Owner of the Lands by reason of the severing of the Lands taken from the other Lands of such Owner, or otherwise injuriously affecting such other Lands by the Exercise of the Powers of this or the special Act …
The value was not restricted to market value, and the amount of damage was not restricted to damage under any particular head of damage. Accordingly, it was necessary for the Scott Committee to make recommendations restricting the assessment of value for any payment of other damages to the heads of loss currently available in Queensland at present — that is, the first six of the seven possible heads of loss outlined earlier in this chapter.
Scott does not provide us with details of the deliberations of his committee, nor of any of the submissions considered. It is therefore necessary to use Heidegger’s tools to evaluate the
354 Ken Hoole, ‘Rail Centres: Newcastle’, (Littlehampton Book Services,1986) Ken Hoole, ‘A Regional History of the Railways of Great Britain: Volume IV The North East’, (David & Charles, 1974) 355 John Armitt, The Royal Academy of Engineering’s Hinton Lecture, (London, 1 October 2002), reprinted in Ingenia, issue 14, 7. 356 Discussed in greater detail in Chapter Four of this Research Project. 357 Victoria 8-9, no.18. 96
historical context of Scott’s reports. Bond,358 citing earlier works by Tarn,359 Gauldie360 and Burnett,361 supplies a background of the need for improved housing for the working classes of England, commenting on the lack of sanitary conditions and of overcrowding, despite legislation aimed at improving the living conditions of English workers. Wade362 cites the same three authors as describing a “natural progression from a laissez-faire situation towards a state role of housing in Britain once authorities clearly perceived the problems of working class shelter [for reasons of] humanitarian impulses, political and economic considerations, and social control”. It appears that the boom in provision of working-class housing was also seen at the very least as necessary because military preparedness required a healthy working class. Local authorities were, after 1919, required by law to provide council housing and Lloyd George's "Homes fit for Heroes" campaign was in part sparked by concerns over the poor physical condition of army recruits.363
Whether the prime motivation for better working-class housing came from the working classes themselves or from the middle classes, the provision of housing in itself appears to have been a sufficient incentive and benefit for those dispossessed of their land to be satisfied with compensation which did not include solatium. The Scott Committee also appears to have been responding to the alarming post-war national debt. With a debt of £9.3 billion,364 it is possible that, in 1920, the British government simply could not afford to pay solatium. This removal of solatium from the calculation of property values for the purpose of compulsory acquisition, novel at the time, was, as was noted above, not justified in the Scott reports.
This situation is conceptually very different from the demands for solatium imposed on railway companies, which had during the 1800s been predominantly private and engaged in making private profit. The fact that railway companies continued to build is, I believe, sufficient evidence of the profit they extracted regardless of the amount of solatium they had
358 Ann Bond, Working-Class Housing in Plymouth, 1870-1914 (Master of Research in History Thesis, University of Plymouth, August 2014). 359 J N Tarn, Five Per Cent Philanthropy: An Account of Housing in Urban Areas between 1840 and 1914 (Cambridge University Press, 1973). 360 E Gauldie, Cruel Habitations: A History of Working Class Housing, 1780-1910 (Allen and Unwin, 1974). 361 J Burnett, A Social History of Housing, 1815-1970 (Methuen, 1980). 362 Catherine Jill Wade, Citizens in Action: Local Activism and National Housing Programs (PhD thesis, Simon Fraser University, British Columbia, Canada, 1991), 409. 363 Mervyn Miller, ‘Commemorating and celebrating Raymond Unwin (1863–1940)’ (2015) 30(1) Planning Perspectives, 129. 364
to pay. So it is not a matter of solatium not being part of British CA law for practical purposes ab initio, but rather its excision, by means of the results of the Scott report, some 70 years after the railways commenced to be built.365
None of these historical conditions exists 100 years later in Queensland, and in particular, despite the shortage of affordable housing,366 the main focus of public infrastructure appears to be that of road and rail. Regardless of the condition of the Queensland Exchequer, as will be argued later in this chapter, any solatium which is to be paid, ought to be paid by the private developers who benefit from the provision of the infrastructure.
B. Queensland In Australia, government has traditionally played a significant role as an owner, funder and provider of services to the public. Since European settlement in 1788, Australians have had a heavy reliance on government, and governments of all persuasions have been attracted to the notion of a strong State tradition.367 Possibly the most significant piece of infrastructure to be created, and that with government funds, was when the Overland Telegraph Line was connected with the submarine cable from Java in 1872.368
In terms of the funding of road- and bridge-building in Queensland, the earliest ascertained record is that of the construction of the Bremer Bridge, in Ipswich. It was constructed by the colonial government on behalf of the Railway Department, and opened for passenger and general traffic in 1865. There was a proposal to collect tolls on the bridge, but up until 1910 no tolls had been collected.369
In 1859, Queensland was declared a new colony, and Queensland's first railway opened in 1865.370 Construction of the railway system had begun in 1863 and it soon became the major means of moving goods and people. The fledgling government left responsibility for
365 Vide page 103, above 366 Judith Yates and V Milligan, ‘Housing Affordability: A 21st Century Problem’, AHURI Final Report No 105 (Australian Housing and Urban Research Institute Limited, 2007)
roads to local authorities and communities so it could concentrate on developing rail infrastructure to deal with growing transport needs. Mineral wealth was yet to be exploited and agriculture had made little progress, partly because of the difficulty in getting produce to markets.
The first track ran for 34 kilometres between Ipswich and what is now Grandchester, to transport wool and produce from the Darling Downs. The network expanded to 11 separate railways over the next 50 years. Railways were used to access land and establish farms, and Queensland eventually had more railway lines than any other state in Australia. Townships sprang up around the new stations and tracks. When gold was discovered, railways were built in the late 1800s to Mt Perry, Gympie, Charters Towers and Mount Morgan. Exploitation of coal mines was enabled by the Great Northern Railway, from Charters Towers to Cloncurry, which opened in 1908. In 1924 the "ribbon of steel", from Cairns to Brisbane, was the final connection in the state's railways. From the 1970s, an extensive network of new lines was developed, particularly to service export coal mines. 371
In 1920, the Queensland Government set up the Main Roads Board with John R. Kemp as the first Commissioner. Commonwealth, state and territory governments were eager to encourage economic development. Roads were recognised as a strategically important part of that development. Most roads were constructed to feed into the rail network. By the end of June 1922, the Main Roads Board had developed a plan of roads that were intended to become main roads and the future backbone of a statewide network and, during the Great Depression, Main Roads played a significant role in unemployment relief.
Much of the land through which roads and railways ran in Queensland was not privately owned. Even after massive land sales during the period of privatisation in the 1970’s and 1980’s, 54% of Queensland by land area was, in 2000, subject to Crown leases.372 Crown leases are a form of land tenure, not amounting to exclusive tenure and not amounting to freehold possession, unique to Australia. They were created by the British Colonial Office after concern by British authorities over the huge land seizures by squatters in the 1830s and 1840s.
The Queensland Department of Transport was created in 1947 to deal with the rapid growth in the number of motor vehicles and passenger and freight transport. In the early 1970s, the
371 Kym Agius, Queensland Rail: Looking Back 150 Years, ABC (2015) 372 HF Campbell, ‘Aborginal Rights and Mineral Exploitation in Australia’ (2000) 99
Beef Roads Scheme was developed to increase beef production and export income. The construction of over 3980 kilometres of road networks in the remote north by 1974 allowed the transport of livestock from isolated properties to railheads and ports by road train.373
During this period, it is arguable that a lack of payment of solatium was justified by the fact the market value of the land compulsorily acquired, plus the value of the improvement of any land not so acquired, sufficiently compensated a landowner for the ‘indignity’ of being the subject of a compulsory purchase. After all, pastoralists and farmers were keen to have road and rail development, as it improved the viability of their farms. There was a direct benefit of being part of a national developmental enterprise, which was, additionally, available for use without direct cost. The lack of solatium, logically, is an indirect cost, and there was, of course, compensation under the other heads. Finally, the land so acquired was farmland, and it does not appear to me that anyone was turned out of home by the acquisition of farmland during Queensland’s road- and rail-building boom.
All this development was public. The output of government-owned enterprises in Australia (including both Commonwealth and individual state enterprises) in 1989-90 accounted for 7% of GDP, 9% of total employment, and 14% of gross fixed capital expenditure.374
Before the 1980s, most infrastructure projects were owned by the public sector and constructed by private enterprise under a system of competitive tendering with the construction firm bearing the risk associated with cost variations. This approach had always been used in major projects, and had gradually displaced the alternative of construction by public works departments. As concern about budget deficits and public debt mounted, a number of devices were employed in an attempt to reduce the debt 'burden' associated with infrastructure projects. In many cases, ownership of infrastructure has been transferred, at least nominally, to the private sector.
It was not until 35 years later in the early 2000’s that Queensland State infrastructure assets were on the way to being privatised. The organisation's coal freight company QR National
373 Department of Transport and Main Roads, ‘History of Queensland’s Roads’,
was privatised on a 99-year lease in 2010, raising more than $4 billion for the state.375 The State's major tollway network, Queensland Motorways, was sold to a private consortium for more than $7 billion.376 By 2014, government policy was to support a huge privatisation plan, spruiking $3.4 billion in extra funds to be reaped from switching to long-term leases of state- owned assets, supposedly to fund a further spending on public works.377 This move was contrary to advice received, for example from the Royal Automobile Club of Queensland (RACQ), to the effect that resources are allocated more efficiently if the tolling rights are retained under full public control.378 The federal government’s Economic Planning and Advisory Commission (EPAC) Infrastructure Taskforce reached similar negative conclusions.379 Nevertheless, privatisation proceeded, as part of an explicit state and also federal government policy. Privatisation, deregulation and marketisation are particular policy positions taken by neo-liberals, who believe that, as a result of the reduction of the size and scope of government activity,380 a more prosperous and more free, although not necessarily a more equal, society will eventuate.381
Following John Howard’s election in 1996, his policy of privatisation saw the biggest disposal of public enterprises in Australian history, with the sales of public owned interests such as the national shipping line, Australian Defence Industries, the partial sale of Telstra, the National Rail Corporation and the leasing out of most airports.382 By 2011-12, the output of government-owned enterprises had fallen to 1.3% of GDP. Their gross fixed capital expenditure contributed only 1.8% of the nation's total.383
375 Kym Agius, ‘Queensland Rail: Looking Back at 150 Years’, ABC News, 31 July 2015
A particularly popular way of packaging infrastructure projects in Australia has been the Build, Own, Operate and Transfer (BOOT) system, as used in the CityLink road project in Melbourne. Under it, private developers completely construct a project in return for the user charges, such as toll or fare revenue. In theory, the government pays nothing during the period of private ownership. Then, after a period sufficient to cover the cost of construction, the user charges are abolished and the asset is handed over to the Crown, free. 384 This system is immensely profitable for the developers. For example, the construction cost of Melbourne’s CityLink project has been estimated at between $1.5 billion and $2 billion, but the present value of the tolls to be paid to the construction consortium is around $4 billion.385
The proceeds from privatisation in Australia totalled in excess of $70 billion386 by the turn of the last century. Seven major projects delivering road transport infrastructure have taken place in Queensland since 1980. They are the:
(i) Gateway Motorway 1980 (ii) Logan Motorway 1987 (iii) Clem7 2006 (iv) Airport Link 2008 (iv) Legacy Way 2013 (v) Toowoomba Second Range Crossing 2015 (vi) M1 Duplication Project 2016 387
Whilst it is conceded that there has been some public benefit from the building of these projects, if Melbourne’s CityLink experience is any indication, major benefits of each of these projects goes not only to the State and the public, but also to the individual developer. This is indicated by a Transurban announcement in August 2017, that its net profit had risen by 850% to $209 million in the year ended June 30 2017, from $22 million a year earlier, when profits were hurt by costs associated with its $1.9 billion acquisition of Brisbane's Airportlink M7 toll road tunnel. Transurban’s toll takings in Brisbane increased 22.9 per cent to $385
384 Victoria, Legislative Assembly, Standing Committee on Economy and Infrastructure, ‘What is the Transurban network?’ Evidence to the Committee of of Mr Scott Charlton, (Chief Executive Officer, Transurban) 21 June, 2017, 2 385
million with average daily trips increasing 15 per cent to 394,000. Nationally, Transurban controls 13 of the 15 Australian toll roads, including Cross City and Lane Cove in Sydney and CLEM7 in Brisbane, and nationwide four years ago owned almost 1200 so-called toll ‘lane kilometres’, which is approximately the distance from Brisbane to Canberra.388
Whilst there is no specific published information on the effect of privatisation of roadways on the wealth or economic status of Queenslanders, the Victorian experience is a guide. In respect of the impact of Transurban toll roads on the living standards of Victorians not privileged enough to live close to the centre of Melbourne, the Member of the Legislative Council for the Western Metropolitan Region, Mr Bernie Finn, argued that:
[P]eople right across the western half of the state ... will be forced to pay a specific tax to enter the city ... this issue should be referred to the human rights commission, because this is something that clearly impacts on the human rights of people in the west — not just in the west of Melbourne but right across the western parts of Victoria.389
Although not all of Victoria’s M1 is tolled, and not all of Citylink falls on the M1, “more than 2.6 million people live along the M1 corridor in municipalities from Geelong through to Pakenham. That is about 43 per cent of the total state population.”390
A controversial section in the original Citylink contract, drawn up in 1995 in Melbourne, gave the company remarkable influence over Melbourne's development by allowing Transurban to claim compensation if the Victorian Government authorised any other infrastructure — including public transport — that competed with CityLink.391
There is no published documentation, whether evidence given before a Parliamentary Committee or anything in the Transurban annual reports, or a single press release, that would indicate that Transurban’s attitude to prices paid for compulsorily-acquired land differs in any significant manner from its attitude to profit maximisation in every other area of its business.
388
5.3 Development of the Principle of Equivalence
The Principle of Equivalence, as it appears in the Acquisition of Land Act 1967 (Qld) underlies the concept of compensation and provides a theoretical construct for the interpretation of legislation and test of compensation determinations.
The Principle of Equivalence is the concept that the compensation payable to a person deprived of interests in land, in the public interest and by a valid statutory head of power, is equivalent to the actual and true loss suffered by the deprivation. Generally, the law of compensation has adopted this principle and established associated legislation to convert this loss into a monetary sum.
It is considered, however, that the deprivation of one’s interests in land has the potential to extend well beyond legal and economic bounds. In order to be able to answer the research question, it is necessary not just to investigate the legal and economic components of the Principle of Equivalence, but to extend the enquiry into psychological and social aspects associated with compulsory deprivation of interests in land.
This consideration is founded in the ‘hidden’ second half of the dictum of Blackburn in Livingstone V Rawyards Coal Co,392 which mentions, to repeat what was said earlier in this chapter, that the notion of what might be ‘equivalent’ to something else “... must be qualified by a great many things which may arise — such, for instance, as by the consideration whether the damage has been maliciously done”. That is, the mental element of the acquiring body, or one of its partners, might affect the quantum of damage, and so might “a great many [other] things”./
In order to demonstrate that a dispossessed land owner might be further entitled could imply they presently are entitled to more than simply the components allowed under current Queensland legislation, and that these might be conveniently included under the heading of solatium, it is necessary to examine how compensation is awarded in other areas of the law which apply in Queensland. For practical reasons, areas which have been the most litigated in this State (including before federal courts and tribunals) have been identified as personal injuries, contract, defamation and unfair dismissal cases.
A. Personal injuries
392 (1880) 5 App Cas 25. 104
When determining the measure of damages for personal injuries sustained by another person’s negligence, the Court aims to award a sum which as nearly as possible places the plaintiff in the same position as s/he would have been in had s/he not sustained the wrong. It includes an allowance for pain and suffering. Under this heading, a Court will compensate for both the plaintiff's actual physical sensations of pain and the mental distress flowing from the realisation of the extent and permanency of the injury which he or she, has suffered. Other anxieties and frustrations consequent on the injury, subsequent medical treatment, and ‘litigation anxiety’ are also included.393 The principles governing the assessment of damages do not permit the application of rigid rules based on categories of actions.394
Damages also cover past and future losses. For example, Todorovic Waller395 dealt with loss of future earning capacity, and acknowledged that the plaintiff's injuries necessitated the future expenditure of money to provide medical services or goods necessary for his health or comfort. This finds its expression most recently in Mills v BHP Coal Pty Ltd, a Queensland case from 2017 in which allowance was made not only for an individual’s past economic loss, but for future loss of earning capacity and future loss of superannuation benefits.396
According to Glass’s analysis in Minister Administering the Environmental and Planning Assessment Act 1979 v San Sebastian.397 If careless conduct of a particular kind by the defendant could reasonably foreseeably result in damage of some kind to the plaintiff’s person or property, and in fact the kind of damage suffered by the plaintiff was foreseeable as a possible outcome of the kind of carelessness charged against the defendant, damages will ordinarily flow. This outcome is subject to the limitation imposed by Mason in his judgement in Wyong Shire Council v Shirt.398 It mentioned the perception of the reasonable man’s response, which “calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.”
393 Wickham v Treloar (1960) 61 SR (NSW) 7; 77 WN (NSW) 350 (FC); Marziale v Hathazi (1975) 13 SASR 150; 63 ALJR 51; Armstrong v Rudd (1978) 46 FLR 42 (FCAFC) (gross scarring causing suffering). 394 Johnson v Perez (1988) 166 CLR 351. 395 (1981) 150 CLR 402, (Gibbs CJ, Stephen J, Mason J, Murphy J, Aickin J, Wilson J, Brennan J). 396 Mills v BHP Coal Pty Ltd [2017] QSC 184 (McMeekin J 31 August, 2017). 397 [1983] 2 NSWLR 268, 295-296. 398 (1980) 146 CLR 40. 105
In a case of the negligent infliction of nervous shock or mental harm, therefore, any of the harms outlined in the third part of the literature review in Chapter Two, are reasonably foreseeable. Any person suffering the requisite degree of mental harm as a result of compulsory acquisition of his or her home could potentially have a right of action against the authority acquiring the home. For example, in Sorbello v South Western Sydney Local Health Network,399 damages awarded included compensation for ‘nervous shock’ or, to use the language of the Civil Liability Act, ‘mental harm’, strain in the marriage, and loss of the plaintiff’s capacity to exploit whatever residual earning capacity she retained. (Figure1)
399 . [2016] NSWSC 863 106
Figure 1: Damages for Nervous Shock.400
400 Desmond Butler: “Gifford v Strang and the New Landscape for Recovery for Psychiatric Injury in Australia” (2004) Torts Law Journal 12(2) 108-9. 107
In New South Wales v Moss401 Heydon collected authorities in support of the proposition that in some circumstances the process of estimation could be “an imprecise and indeterminate one” and could be formed on “slender materials”, finally concluding that a difficulty in assessment of quantum of damages did not mean that a plaintiff was only entitled to a nominal sum.
If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high -— 99.9 per cent — or very low — 0.1 per cent. But unless the chance is so low as to be regarded as speculative — say less than 1 per cent — or so high as to be practically certain — say over 99 per cent — the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded.402
Similarly, in European Bank Limited v Evans,403 the loss could be calculated, although with some measure of complexity, and damages were accordingly awarded. It is true that many years ago, in past cases, the Court has held that ‘just terms’ require greater recompense than general compensation principles afford, but conceived of the extra requirements in monetary terms, such as further payments for lost profits.404
This comensation calculation formula was conceived of as being beyond merely market value. For example, in Nelungaloo Pty Ltd v Commonwealth405 the Commonwealth required compulsory acquisition of wheat under a pooling scheme. There, Dixon held that ‘just terms’ required a balancing exercise, because ‘just terms’ did not simply mean ‘compensation’. Compensation was restricted to full money equivalence, for what could be measured in money. ‘Just terms’ went further, and were concerned with fairness between the community
401 (2000) 54 NSWLR 536, [71]. 402 Malec v Hutton (1990) 169 CLR 638. 403 [2010] HCA 6. 404 See for example Johnston Fear v Commonwealth (1943) 67 CLR 314, 322–3. 405 (1948) 75 CLR 495. 108
and the property owner.406 A proposed settlement will not be part of ‘just terms’ if it is “so unreasonable as to terms that it cannot find justification in the minds of reasonable men”.407
As demonstrated in the literature review, a compulsory acquisition of land may also cause a substantial degree of mental harm, or pain and suffering, to persons of a certain age who have been in a property for a certain period of time. When it is foreseeable that a compulsory acquisition will cause a substantial degree of mental harm, or pain and suffering, it is argued that it is unreasonable not to compensate a victim who suffers a substantial degree of mental harm, or pain and suffering, as a result of the compulsory acquisition. This section has demonstrated this compensation happens in other areas of law. A failure to compensate such a person is such a departure from the established law of personal injuries as not to find justification in the minds of reasonable men. Accordingly, I argue that, not only is an amount of payment, which does not include an amount for such harm, contrary to the concept of ‘just terms’, but it is contrary to the development of personal injuries law in Australia for at least the last 70 years.
In Rowe v McCartney,408 Samuels noted that in seeking to decide whether a particular harm is of a kind that was foreseeable, the Court was required to remember that the purpose of the concept of foreseeability was to set a limit to the consequence for which a negligent defendant ought to pay. The modern law of torts in Queensland has a complex, and often conflicting, number of aims. In the early 2000s, there was particular focus, highlighted by the Ipp report,409 on the need to limit defendants’ liability to ensure that tort law did not impose too costly a compensation system for persons seeking insurance, or too onerous a burden on potential defendants or their insurers.
The Civil Liability Act 2003 (Qld) certainly limits liability and imposes certain caps on different types of payments, but it does not abolish them. Commissioner Ipp clearly recommended limiting certain payments, but he did not, unlike Commissioner Scott410 some 85 years
406 (1948) 75 CLR 495, 569. 407 Grace Brothers v Commonwealth (1946) 72 CLR 269, 290, (Starke, J). 408 [1976] 2 NSWLR 72 (CA). 409 Commonwealth of Australia, ‘Final Report of the Review of the Law of Negligence’ (David Ipp, Chairman) (Canberra, 2002)
before the Ipp report,411 recommend abolishing them.
B. Consequential loss in contract where recoverable loss transcends normal loss
Losses over and above those directly relating to a breach of contract, or which are immediately related to the cost of putting right a breach of contract by a defendant, are recoverable under the heading of ‘consequential loss’. The traditional position at common law was that 'consequential loss' was defined as losses that, although not naturally arising as a result of a breach, would have been in the contemplation of the parties, as to being a foreseeable consequence of a breach at the time of the contract.412
Since Environmental Systems v Peerless Holdings Pty Ltd, 413 ‘consequential loss’ has no definition broader than its ordinary meaning. It therefore includes everything beyond the normal measure of damages, and encompasses matters which are subject of some calculation, for example, lost profits. The narrower line of reasoning, which had been adopted in English cases such as Croudace Construction Limited v Cawoods Concrete Products Limited 414 and Millar’s Machinery Co Limited v Way 415 and in the Victorian Supreme Court had the opportunity, in the later cases of Papadopoulos v MC Labour Hire Services Pty Ltd (No 4) 416 and Rod Investments (Vic) Pty Ltd v Abeyratne (No 2)417 to return to its earlier position, but chose to remain with the broader position in Peerless.418
In Regional Power Corporation v Pacific Hydro Group Two Pty Ltd [No 2]419, Martin took a commercial perspective, which he said would vary from case to case, but which can be reconciled with the three Victorian cases cited. The only Queensland case found on the topic was MGC Properties Pty Ltd v Tang. 420 Other commercial compensation outcomes were
411 Commonwealth of Australia, ‘Final Report of the Review of the Law of Negligence’ (David Ipp, Chairman) (Canberra, 2002)
identified in New South Wales case of Allianz v Waterbrook,421 and the South Australian case of Alstom Ltd v Yokogawa Australia Pty Ltd (No 7).422
Two principles which can be deduced from the Australian cases cited in the last preceding paragraph, and which are relevant to the question of solatium, apply. Firstly, in neither tort nor contract actions may a defendant retain benefit from his or her breach,423 because of considerations of justice and equity.424 For example, in the tort case of Liesbosch Dredger v SS Edison,425 Wright abandoned the application of a depreciated amount for the quantum of damages in the instance of the destruction of a ship in favour of a method of calculation that reflected the value of the ship as a going concern. The former method was calculated in accordance with an accountant’s depreciation schedule, but did not encompass loss of profits; it was rejected in favour of a method which did reflect that loss.
Allowing a defendant to retain the difference between a pure accountant’s calculation of measurable loss, and ignoring the foreseeable, but harder to measure consequential loss which arises not as a matter of legal theory, but as a commercial reality, is therefore completely within the methodology currently employed by Australian courts in ascertaining the total quantum of losses suffered by the innocent party in contract cases. Market value, like depreciated value, is something to be suffered by everybody. However, it is foreseeable that individuals could differ from the norm,426 or from the minimum, and that some might have more difficult requirements which, as a result of the compulsory acquisition of their land, need to be fulfilled.
It is argued that the ‘market value’ method used in Queensland in land acquisition cases should be interpreted as analogous to the method rejected by Wright in Liesbosch Dredger v SS Edison,427 as well as the Australian cases cited above, insofar as neither the “market value” method, nor the application of a depreciated amount, was seen to fully reflect the loss suffered by the injured party in such cases.428
421 [2009] NSWCA 224. 422 [2012] SASC 49, [286]-[289]. 423 Attorney-General (UK) v Blake, [2000] UKHL 45; [2001] 1 AC 268, 285 (Lord Nicholls). 424 Bowen Investments Pty Ltd v Tabcorp Holdings Ltd [2008] FCAFC 38, [29]. 425 [1933] AC 449. 426 Robinson v Harman [1848] EngR 135; (1848) 1 Ex 850, 855 (Parke B). 427 [1933] AC 449. 428 I & L Securities v HTW Valuers (2002) ATPR 41-894. 111
C. The concept of ‘loss’ in the law of defamation. ‘Property’ is defined as any “right, interests or thing which is legally capable of ownership, and which has a value”.429 It must be “definable, identifiable by third parties, capable in its nature of assumption by third parties and have some degree of permanence or stability”.430 The right in property of a ‘thing’ refers to the proprietary interest in that ‘thing’ that can be enforceable against “the rest of the world”.431 That ‘thing’ can be either real or personal property, and it can be a right recognised at common law, or, if it is something intangible but capable of sale, such as a licence to sell alcohol, recognised only by legislation.432 Ultimately, property is identified as a “bundle of (legal) rights” owned by a person over a thing,433 those rights generally extending to those of “ownership, enjoyment, control and dominion”.434
Where a person's integrity has been attacked, or their reputation damaged, the principle in Livingstone v Rawyards Coal Co435 requires that there be compensation for the tangible as well as the intangible harm caused by the defendant.436 But, viewed against the analysis of the preceding paragraph, a person does not own his or her reputation. There is no proprietary interest in it, because it cannot be bought or sold. Accordingly, the law of defamation deals only in intangible loss. Juries in defamation cases, and judges in cases where there is no jury, habitually are called upon to measure the amount of monetary compensation which is appropriate for damage to something which the person injured does not even own, let alone control.
I have chosen as an example the position of a Catholic priest, despite the fact that in the current climate this is somewhat emotive and highly charged. The reputation of this person, simply by virtue of his office, has changed somewhat in the last 30 years, and this is not a function, necessarily, of the individual whose role it is to be a priest, but more likely, of the
429 Peter Butt and David Hamer, LexisNexis Concise Australian Legal Dictionary (LexisNexis Butterworths Australia, 4th ed, 2011) 468. 430 National Provincial Bank Ltd v Ainsworth [1965] AC 1175, 1247-8. 431 Samantha Hepburn, ‘Principles of Property Law’ (Cavendish Publishing Limited, 2nd ed, 2001) 21. 432 Richard Taylor, ‘Human Property: Threat or Saviour?’ (2002) 9 Murdoch University Electronic Journal of Law 4, 42-43. See also Wily v St George Partnership Bank Ltd (1999) 84 FCR 423, 431. 433 Daniel Klein and John Robinson, ‘Property: A Bundle of Rights? Prologue to the Property Symposium’ (2011) 8(3) Econ Journal Watch 193; Yanner v Eaton (1999) 201 CLR 351. 434 Lysander Spooner, The Law of Intellectual Property; or An Essay on the Right of Authors and Inventors to a Perpetual property in their Ideas (Bela Marsh, 1855) 1. 435 Livingstone v Rawyards Coal Co (1880) 5 App Cas 25. 436 As noted above, the modern restatement of this principle appears in Uren v John Fairfax & Sons Ltd (1966) 117 CLR 118. 112
role itself. If one accepts as a matter of everyday popular culture, that the Catholic Church has been damaged by the allegations of sex abuse raised in the recent Royal Commission437 then it is hard to imagine a single priest whose reputation would have been unscathed, even if he was completely removed from the practices outlined in the report of the Royal Commission. Clearly the priest has no control over his individual reputation. Nor, unlike in the case of a brand name, can the priest sell his reputation. It is hard to imagine that one’s reputation is capable in its nature of assumption by third parties. Nor, given its susceptibility to external events, can a priest’s reputation be said to have a degree of permanence or stability. However, were one to accuse a Priest with an exemplary reputation of paedophilia, one would expect to be met with a defamation suit. Absent fairly convincing proof, one would expect to lose.
How can this be, if that priest does not own his reputation? A defamation action is fundamentally an action to vindicate a person's reputation on some point as to which he or she has been falsely defamed, and the damages awarded have to be regarded as the demonstrative mark of that vindication, even though the appropriate amount to be fixed for an award for non-pecuniary or intangible harm is inherently uncertain.438 Or, as Windeyer said of the compensatory rationale of damages for pain and suffering in Skelton v Collins:439 "I am unable myself to understand how monetary compensation for the deprivation of the ability to live out life [... fully] can be based upon an evaluation of a thing lost. It must surely be based upon solace for a condition created, not upon payment for something taken away."
In Uren v John Fairfax & Sons Ltd,440 aggravated damages, which are ordinarily awarded to reflect conduct by a defendant which aggravates the injury and increases the harm done to the plaintiff, were available. They are compensatory in nature. The maximum amount of damages cannot exceed the figure which is capable of reasonably being seen as representing appropriate compensation for the aggregate harm inflicted upon a plaintiff — a broad figure indeed which brings into consideration every possible measure of harm.441
437 See eg Charlotte King, ‘“Catastrophic failure” of Catholic Church leadership in Ballarat caused “irreparable suffering”: Royal Commission’, ABC News, 6 December 2017
Damages for loss of reputation have included an amount attributable to the loss of business,442 for example, together with reparation for the harm done to reputation.443
Australia has not considered the ‘serious harm’ test introduced in the Defamation Act 2013 (UK), a test designed to weed out cases that might be regarded as trivial, although there is a defence of triviality under the Defamation Act 2005 (Qld) s 33.444 The comparison to CA is clear. The condition being created is not the damage to a sense of self-worth and dignity because of harm to a reputation but the damage to self-worth and dignity because of the matters canvassed in part 3 of the literature review.
A matter is trivial, in defamation law, if it is not likely to harm the plaintiff at the time of publication.445 A useful method of deciding whether a matter is trivial or not, therefore, is to imagine a hypothetical ‘reasonable reader’, who is:
a person of fair, average intelligence who is neither perverse nor morbid nor suspicious of mind nor avid of scandal. However, that person does not live in an ivory tower but can ... read between the lines in light of that person’s general knowledge ... considers the publication as a whole, and tends to strike a balance between the most extreme meaning that the publication could have and the most innocent meaning. That person has regard to the content of the publication. Emphasis given by conspicuous headlines … is a legitimate matter [to be taken] into account.446
If a matter is trivial, then the plaintiff loses. If, however, a matter is not trivial, harm is presumed, and the measure of damages must be in an appropriate and rational relationship with the harm sustained by the plaintiff.447 It calibrates the personal distress and hurt caused to the plaintiff.448 The fact that personal distress and hurt are difficult to measure does not
442 Andrews v John Fairfax & Sons Ltd, [1980] 2 NSWLR 225. 443 Carson v John Fairfax & Sons Ltd , (1993) 178 CLR 44, 60–1 (Mason CJ, Deane, Dawson and Gaudron JJ). 444 “It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm.” 445 For a case decided under the uniform Defamation Acts, see for example Barrow v Bolt [2015] VSCA 107. Two leading cases decided before the introduction of the uniform Defamation Acts are Chappell v Mirror Newspapers Ltd (1984) Aus Torts Reports 80-691 and Jones v Sutton (2004) 61 NSWLR 614. 446 Queensland Newspapers Pty Ltd v Palmer [2012] 2 Qd R 139, [19]-[21] (Boddice J, with whom McMurdo P and Muir JA agreed). 447 See for example Defamation Act 2005 (Qld), s34. 448 Cerutti v Crestside Pty Ltd [2014] QCA 33, [25]-[26] (Applegarth J, with whom McMurdo P and Gotterson JA agreed). 114
prevent awards of damages being made in defamation; it is widely acknowledged that “comparisons between awards for defamation are difficult. Every defamation, and every award of damages for defamation, is necessarily unique”.449
The comparison with solatium is clear: if the amount of personal distress and hurt is trivial, the other heads of damage for which compensation is payable are probably sufficient to satisfy the Principal of Equivalence. One doesn’t own one’s attachment to the local community any more than one owns one’s reputation, but in each case one would know then they have been tarnished or taken away.
Let us imagine, however, that a hypothetical ‘reasonable reader’, a jury or tribunal member, on reading the effects of the dispossession on a particular individual, could strike a balance between the most extreme ‘spin’ which could be put on those circumstances, and the most benign. He or she could then decide whether the personal distress and hurt suffered was trivial or not. Where the condition created by the compulsory acquisition of a landowner’s land is, in terms of personal distress and hurt, not trivial, then, were the law to be adopted in Queensland in respect of solatium to be analogous to that with respect to defamation, solatium ought be available as a solace for the condition so created.
D. Loss of employment For nearly 25 years, federal unfair dismissal provisions have allowed individual employees the right to initiate action in respect of loss of employment. This right is not based on property rights: Australian law does not recognise property in one’s job. The theory behind this facility was outlined in the previous part of this chapter: like a reputation, a job cannot be sold. As exterior factors affect a reputation, exterior factors, such as technological change and poor market conditions can affect a job.
The Fair Work System introduced by the federal Labor government450 restored unfair dismissal rights, which had previously been removed by the Howard Government, for workers who have been dismissed at the initiative of their employer.451 They must have completed the minimum employment period,452 and the dismissal must have been ‘harsh,
449 Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327, 349 (Hayne J). 450 Fair Work Act 2009 (Cth) (FWA) and related legislation such as the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth). 451 FWA ss 385(a), 386. 452 FW Act s 382(a). 115
unjust or unreasonable’.453 This provision includes a termination on the basis of race, sex, age, disability, or other proscribed ground.454 If reinstatement is impracticable, compensation is payable.
The starting point in the calculation of compensation is the wages and benefits that the worker ought to have received had there been no termination,455 but compensation is available in addition to ‘lost’ wages and benefits, to cover shock, humiliation and distress if the termination of a worker’s employment is carried out in a particularly denigrating way.456 The legislation allows a court, in calculating compensation, to have regard to lost wages and benefits, but the court may also consider any other matter that it considers relevant, subject to a total cap of either the high income threshold of $71,000,457 or 26 weeks of wages and benefits, whichever is the lower.458 The maximum amount of compensation for loss of employment is curiously close to the maximum amount of solatium allowable in New South Wales, under recent legislative changes outlined in Chapter Four of this project.
5.4. Equitable considerations and breach of fiduciary duty The previous section looked at areas of law which are useful comparisons with CA. These were separate areas of law, with analogous concepts. This section considers equitable concepts, which were specifically contemplated by Blackburn, LJ in the Coal case. I argue that they ought be imported, therefore, not because they are from analogous areas of law but because they were specifically contemplated in the ratio used as the foundation of the PoE.
The equitable considerations alluded to by Blackburn, LJ in the ‘under-quoted’ second half of his famous ratio in the Coal case, indicate that the manner in which wrongful acts may have some bearing upon the measure of damages. This section examines any equitable considerations which might affect either the measure of damages or, because damages are a common law remedy and equity is a separate stream of law, whether additional equitable compensation is payable in cases in which a resuming authority has taken advantage of “an
453 FW Act s 385(b). 454 FW Act s 351. 455 Brackenridge v Toyota Motor Corp (1996) 67 IR 162. 456 This was the case, for example, in Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144. 457
inequality so strong, gross and manifest that it must be impossible to state it to a man of common sense without producing an exclamation of the inequality of it”.459
Equity intervenes ... not so much to recoup a loss suffered by the plaintiff as to hold the fiduciary to, and vindicate, the high duty owed to the plaintiff ... [T]hose in a fiduciary position who enter into transactions with those to whom they owe fiduciary duties labour under a heavy duty to show the righteousness of the transactions.460
This section will also examine whether the acquiring authority and the landowner necessarily stand in a fiduciary relationship,461 the breach of which may entitle the aggrieved landowner to further compensation, or whether, in cases in which a private developer urges a constructing authority to acquire land, essentially so that the developer might make a profit, it might be said that the conduct of the developer is so unconscionable that it “goes against good conscience”.462
Decided Australian cases cited support the proposition that, in instances in which the acquiring authority is on-selling the land to a private developer, a breach of fiduciary duty will arise if:
(i) the fiduciary undertakes to act for or on behalf of or in the interests of another person,463 such as a developer, in terms of the public private partnership with that developer. Here the acquiring authority is caught by the principles in the decided cases by virtue of having acquired the land and then on-selling it. It is possible that there is a requirement for the fiduciary to know that the developer will make a profit, but this knowledge is, I submit, a matter of commercial reality and not open to serious debate. (ii) the fiduciary is in a position of power vis-à-vis the other, here because of the compulsory nature of the transaction.464
459 Duncan Mackenzie Kerly, ‘An Historical Sketch of the Equitable Jurisdiction of the Court of Chancery’, Yorke Prize Essay of the University of Cambridge for 1889 (University Press, 1890). 460 Maguire v Makaronis: (1997) 188 CLR 449, 465; 144 ALR 729, 738. 461 Hospital Products Ltd v United States Surgical Corporation (1984) 55 ALR 417, 432. 462 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387. 463 Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41, 96–7 (Mason J). 464 Barton v Armstrong [1976] AC 104 (PC). 117
(iii) the subject of the compulsory acquisition order is, because of the authority’s position of power, vulnerable to abuse by the authority of its fiduciary’s position. Here, the aggrieved landowner can control neither the acquiring authority nor the developer. (iv) the fiduciary acts in a ‘representative’ character, on behalf of the developer.465 In R & R Fazzolari Pty Ltd v Parramatta City Council,466 for example, the municipality performed the task of the acquiring authority, but the ultimate beneficiary of the acquisition was the developer, and the aggrieved landowner could approach the developer directly.
The fact that a landowner is forced to accept an inadequate amount, such that an acquiring authority can pass land to a private developer arguably demonstrates that the acquiring authority’s harshness in circumstances such as Fazzolari467 will offend minimum requirements of fair dealing.468 Equity looks to the form and not the words used; the form is that, as a result of that harshness, the landowner makes a loss and the developer gains an unjust enrichment. A constructive trust is the usual remedy in circumstances of unjust enrichment.469 In these cases, I argue that it ought to be imposed in favour in this case of the former landowner to secure, to the extent that it can be calculated, the amount in respect of the landowner’s particular piece of land that the developer has been unjustly enriched.470
The fact that a landowner is forced to accept an inadequate amount arguably demonstrates that the acquiring authority’s harshness in circumstances such as Fazzolari471 will offend minimum requirements of fair dealing.472
Let us return to the concept of the ‘reasonable reader’, whom we met in the immediately preceding part of this chapter. Conduct is deemed to be unconscionable whenever it can be measured, in accordance with the ordinary concepts of humanity, to be so unfair and against
465 Hodgkinson Simms [1994] 3 SCR 377. 466 (2009) 237 CLR 603. 467 R & R Fazzolari Pty Ltd v Parramatta City Council (2009) 237 CLR 603. 468 Commonwealth v Verwayen (1990) 170 CLR 394. 469 See for example Baumgartner v Baumgartner (1987) 164 CLR 137; Calverley v. Green (1984) 155 CLR 242; Giumelli v Giumelli (1999) 196 CLR 101; Nocton v Lord Ashburton [1914] AC 932 ; Canson Enterprises Ltd v Boughton & Co [1991] 3 SCR 534, Adamson v Reid (1880) 6 LLR (E) 164, 305. 470 In analogous circumstances a constructive trust was imposed in Giumelli v Giumelli (1999) 196 CLR 101, for example. 471 R & R Fazzolari Pty Ltd v Parramatta City Council (2009) 237 CLR 603. 472 Commonwealth v Verwayen (1990) 170 CLR 394. 118
conscience473 that a court would intervene. Generally, conduct that is unfair, unjust, unscrupulous, unreasonable, harsh or oppressive might be construed as 'unconscionable conduct'.474
473 Pavey & Matthews Pty Ltd v Paul. (1987)162 CLR 221,225 (Mason and Wilson JJ). 474 Zoneff v Elcom Credit Union Ltd (1990) 94 ALR 445; ATPR 41-058. 119
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Figure 2: Unconscionable Conduct.
In Australia, as in England, it is no longer necessary to prove fraud.475 The moment that a developer is aware of the fact that a profit has been made at the expense of a dispossessed landowner, that ‘knowing receipt’ makes the developer, liable to restore its value to the dispossessed landowner as beneficiary.476 If a reasonable reader were to consider, in all of the circumstances, that the dispossession of a landowner was, to the knowledge of the developer, likely to be unfair, unjust, unscrupulous, unreasonable, harsh or oppressive, then the receipt of a profit is, on the basis of the authorities cited in this part of this Chapter, sufficient to enliven the liability of a developer.
Whilst the PoE is a creature of common law, and not a creature of equity, there is no reason in principle why aggravated damages at common law cannot be allowed in cases of grossly inequitable conduct, such as was seen in Fazzolari. 477 The reasoning is simple: intentionally inequitable behaviour is aggravating behaviour, injurious to social capital at large and civil society. Damages at common law, at least in the home of the common law, England, are to be awarded on the basis of being just and equitable.478 A course of conduct which seeks to turn a householder out of his or her house simply because a private infrastructure provider needs the land (in order to make what was demonstrated in Chapter Four as being a profit) is intentional. It is part of a premeditated and clearly articulated business plan. The execution of that plan may well be inequitable, and lead to unjust enrichment, unless that householder is given adequate compensation.
It is hard to imagine a compulsory acquisition which is on the one hand inequitable, but which on the other hand would not have the sort of “natural and probable consequence[s]”479 discussed earlier in this Chapter. On that basis, it is “just and equitable” for common law damages to include compensation for mental harm, strain in a marriage, loss of capacity to earn480 and other consequential losses,481 equivalent to the total losses suffered by a
475 Royal Brunei Airlines v Tan [1995] 2 AC 378 (PC), 384-5, 387H Twinsectra v Yardley [2002] 2 AC 164, [26]. 476 Karak Rubber Co Ltd v Burden (No. 2), [1972] 1 All ER 1210,1234-1235 (Brightman J); El Ajou v Dollar Land Holdings PLC [1993] 3 All ER 717, 736 (Millett J). 477 R & R Fazzolari Pty Ltd v Parramatta City Council (2009) 237 CLR 603. 478 Attorney-General (UK) v Blake [2000] UKHL 45; [2001] 1 AC 268, 285 (Lord Nicholls). 479 Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388. 480 Sorbello v South Western S Local Health Network[2016] NSWSC 863. 481 Environmental Systems v Peerless Holdings Pty Ltd (2008) 227 FLR 1; [2008] VSCA 26. 121
dispossessed landowner, even where the calculation of the loss is complex.482
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Equitable compensation against developers is likely to follow the dictum of Kitto in Blomley v Ryan: enforcement ought to deny “to those who act unconscientiously the fruits of their wrongdoing”.483 It does not matter what the statute says, unless it authorises the re- allocation of land to another’s private profit in the clearest of terms (and in fact, the Queensland statute does not). “Equity will not permit a statute to be a cloak for fraud”, 484 meaning that it is not possible to hide behind rights given under the legislation when engaging in fraud.
Australian Courts have enforced equity in aid of public policy to prevent the stronger of two parties engaging in fraud,485 deceptive conduct486 and misleading conduct.487 This section has attempted to demonstrate that the demanding of the handover of private property, without disclosing that it will end up, as profit, in the hands of developers, constitutes unconscionable conduct.
5.5 Human rights aspects
The human rights aspect of the matter deserves mention, particularly in Queensland, where the right to own property under the Convention on the Elimination of all forms of Racial Discrimination includes the right to own property. This right is now reflected in the Racial Discrimination Act 1975 (Cth), and reflects Article 17 of the Universal Declaration of Human Rights. A right applying to one ethnic group applies to all ethnic groups.488 Because the principle of legality imposes the need for a clear and precise statement of Parliamentary intention, before any legislation will be construed as overriding common law rights and freedoms:
Whether … State legislative power is constrained by rights deeply rooted in the democratic system of government and the common law was a question referred to but not explored in Union Steamship Co … v King. Whatever the answer to the unexplored question, it is self-evidently beyond the power of the courts to maintain unimpaired common law freedoms which … a State Parliament, acting within its
483 (1956) 99 CLR 362. 484 McCormick v Grogan (1869) LR 4 HL 82, [1869] UKHL 1. 485 Pearson & Sons Ltd v Dublin Corp [1907] AC 351. 486 JW Carter, Carter’s Guide to Australian Contract Law (LexisNexis, 2nd ed, 2011) Chapter 23. 487 Byers v Dorotea Pty Ltd (1986) 69 ALR 715. 488 Racial Discrimination Act 1975 (Cth). 123
constitutional powers, has, by clear statutory language, abrogated, restricted, or qualified...489
The statement in Minister for Immigration and Ethnic Affairs v Teoh,490 to the effect that where a statute is ambiguous, courts will generally favour a construction that accords with Australia’s international obligations, extends this principle such that clear and unambiguous language is needed to achieve a construction of legislation that is contrary to Australia’s international obligations.
Because the Acquisition of Land Act 1967 (Qld) does not express itself in these terms, it cannot operate arbitrarily to deprive a person of property. To the extent to which English law, which was transmitted to the various colonies upon colonisation and which passed into their domestic laws, is international law, then the comments of Blackstone, that “there is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property”491 and Locke, that “every Man has a Property in his own Person ... [t]he Labour of his Body, and the Work of his Hands, we may say, are properly his”,492 form part of international law. This is reflected in a decision of that time, that “No man can set his foot upon my ground without my licence.”493 High Court authority reflects this, and entrenches the right to own property as a human right in Australia. Private property rights in Australia limit officials to the bounds of their lawful authority.494
Whilst there is no specific legislation which enacts the Universal Declaration of Human Rights in Australia – although the Queensland Human Rights Bill 2018 deals directly with property rights – and whilst Australia does not have a Bill of Rights, the existence of elements of international human rights law which support the arguments made in Section 5.3 of this chapter in respect of equity not permitting a statute to allow the unconscionable taking of the fruits of one’s wrongdoing495 only reinforces, in my view, the right of a citizen either not to have his or her property appropriated against his or her wish for private gain, or, if there is a public purpose to be served, in respect of which the restriction on his or her human
489 South Australia v Totani (2010) 242 CLR 1. 29 [31]. 490 (1995) 183 CLR 273, 287, (Mason CJ and Deane J) and see 315 (McHugh J). 491 Commentaries on the Laws of England (The Legal Classics Library, 1765) Book 2. 492 John Locke, Two Treatises on Government (Butler, Reid, Sharpe and Bumpus, 1821), 209. 493 Entick v Carrington [1765] EWHC KB J98 1066. 494 Plenty v Dillon (1991) 171 CLR 635. 495 Blomley v Ryan (1956) 99 CLR 362 ; McCormick v Grogan (1869) LR 4 HL 82, [1869] UKHL 1. 124
rights might be said to be reasonably adapted,496 then only to the extent that the minimum interference with the rights of the individual citizen takes place. This is in keeping with the opinion of the leading jurist Louis Henkin:497
Government may not do some things, and must do others, even though the authorities are persuaded that it is in the society’s interest (and perhaps even in the individual’s own interest) to do otherwise; individual human rights cannot be sacrificed even for the good of the greater number, even for the general good of all. But if human rights do not bow lightly to public concerns, they may be sacrificed if countervailing societal interests are important enough, in particular circumstances, for limited times and purposes, to the extent strictly necessary.
496 United Nations Economic and Social Council, ‘Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights’, UN Doc. E/CN.4/1985/4, Annex (1985). 497 Louis Henkin, The Age of Rights (Columbia University Press, 1990) 4. 125
Figure 4: Human Rights
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5.6 Conclusion
This chapter has demonstrated that solatium once existed in the UK and in Queensland. Solatium, in a similar manner to compensation in the four areas selected for discussion, went far beyond the narrow limits either of pure monetary loss, i.e. ‘special damages’ (for torts cases) or ‘normal’ or ‘natural’ loss (for contracts cases). It went beyond areas which reflect “those items of loss which the plaintiff has suffered prior to the date of trial and which are capable of precise arithmetical calculation”,498 in the same way the comparative areas of loss described in this chapter with respect to defamation, or wrongful termination of employment, do.
General damages refer to all injuries which are not capable of precise calculation as long as they were caused by the tort and, with respect to an intentional tort, are “a natural and probable consequence” of the injury caused.499 The chapter has demonstrated that general damages, or compensation akin to general damages, is available to wronged parties in areas of law as diverse as defamation law, contract law, personal injuries law, employment law and equity. It has demonstrated that, in the case of equity, compensation is available when a strong party takes unconscionable advantage of the difference of bargaining power between the parties; a case which exists where a developer, through an acquiring authority as its agent or functionary, can compel the weaker landowner to disgorge500 property in circumstances in which the developer will benefit.
I have demonstrated that non-financial losses are recoverable in tort, particularly in terms of pure mental harm or pain and suffering. I have demonstrated that they are available in contract. I have demonstrated that compensation in respect of unjust enrichment, an equitable concept, is available simply because of the injustice of the terms, given the profit of the developer and the loss of the householder, even if the developer’s profit is in money terms and the householder’s loss is, at least to some extent, not. I have demonstrated that the injustice is founded in the fact that the cavalier attitude of the developers, as shown in Part 3 of the literature review in Chapter Two, to the householders’ sense of place and
498 Rosalie Balkin and Jim Davis, Law of Torts (LexisNexis Butterworths, 5th ed, 2013) [27.5]. 499 Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388. 500 For example, in Percival v. Wright [1902] 2 Ch 421, had the dealing been unfair, the directors would have been liable to disgorge their supernormal profits at the suit of the company.
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attachment. The failure to make adequate provision to take adequate steps to prevent such a loss actually causes the unjust enrichment, at least to the extent of the monetary value that such a provision would have had, had the developer bothered to take such adequate steps to prevent that loss.
None of these figures of damages or compensation are exact. This is of no concern. The law recognises that an award will not necessarily be perfect. In Lee Transport Co Ltd v Watson,501 Dixon said:
No doubt it is right to remember that the purpose of damages for personal injuries is not to give a perfect compensation in money for physical suffering. Bodily injury and pain and suffering are not the subject of commercial dealing and cannot be calculated like some other forms of damage in terms of money.
There is nothing in the literature or in the decided cases to indicate that the same ought not to be true for the loss of a home.
People in Queensland transact business with the Commonwealth Bank, National Australia Bank, ANZ, Suncorp or Westpac based on the respect and trust that these banks have legitimately earned since, in Westpac’s case, 1813. Yet each of these has been subject of litigation on the basis of unconscionable conduct,502 often of a sort which might not have been imaginable 20, 40 or 60 years ago because the capitalism of 20, 40 or 60 years ago was not as developed as it is in 2018.
Developers are no different. The fact that development is of some demonstrable public benefit does not logically lead to the conclusion that it is of more public benefit that not, nor does it lead to the conclusion that it should be carried on with disregard to the legitimate rights of others. Further, the fact that developers, who are (at least insofar as they are individuals) members of the public, reap a benefit, does not mean that all members of the public reap a benefit.
There is, therefore, no logical link between a project providing a benefit to that segment of the public who are developers, on the one hand, and being of public benefit, on the other.
501 (1940) 64 CLR 1, 13–14. 502 Whilst the most famous of these was Commercial Bank v Amadio (1983) 151 CLR 447, more recent cases include Paciocco v Australia & New Zealand Banking Group Ltd (2016) 90 ALJR 835 and RHG Mortgage Corporation v Ianni [2014] NSWSC 849. Cases not involving individual borrowers include RinRim Pty Ltd v Deutsche Bank AG [2017] NSWCA 169. The large number of press reports on the topic include
Even if that is the case, and there is a public benefit, as argued in Chapter Four, the benefit is unlikely to be so great, and the State of Queensland so financially exhausted, as to justify a commission of enquiry, were it sitting today, to reach the same conclusions as the Scott Committee reached in 1918. Solatium as a concept would not be abolished; I demonstrated this in Chapter Four.
It is, in my view, legitimate to compare developers to banks, simply because of their size. I’ve use the tools of Heidegger to look at the context of modern almost-monopoly capitalism and its integration with the state.503 It is difficult to assess what goes on in the minds of the controllers of a developer, only because developers have not been subject to the same scrutiny as have banks. This despite the fact that Transurban profits, at over $250 million a year, approach those of one of the smaller banks.
Occasionally, even the biggest of developers will stray over the line, and as developments are carried on as public-private partnerships, generally when a developer strays over the line, it has the help of one or other level of government. This, as with the banks, should not be a factor which excuses bad conduct.
In the absence of the limitations that were present at the time of the Scott Reports limiting damages, injured landowners suffer the loss of place and attachment demonstrated in the literature review in Chapter Two. It follows that they are entitled to compensation, as shown by the development of both common law and equity, for factors usually included in the concept of solatium.
The interviews carried out, as reported in Chapter Six, support both the findings revealed in the literature review, the arguments as to losses which cannot easily be measured monetarily as outlined both in Chapter Four and in this chapter, and the arguments as to manifest unfair behaviour outlined in this chapter. That is, the behaviour is shown to exist in theory in Chapters Two and Four, and in Chapter Five, but the quantitative data extracted from interviews reported in Chapter Six prove that it exists in fact.
503 Thomas Piketty, Capital in the Twenty-First Century, published in French in 2013 and in English in March 2014. In audio form, Brilliance Audio, 2015. 129
Chapter 6: Practical Section — Interviews & Answers
As indicated in the methodology section of this research paper, there were two classifications of interviewees: industry professionals involved in the acquisition process, and persons who had been dispossessed of their home as a result of the compulsory acquisition process for major transport infrastructure projects in south east Queensland. These two categories of responses are presented in separate sections below, followed by a discussion.
The second category of interviewees have indicated a need for assistance to compensate for the inequity of dispossession, stress and anxiety caused by dislocation and loss of attachment, and the time and trouble needed to relocate. It is argued, however, that non- financial losses are not always best remedied by financial payments.
By comparison, the first category of interviewees do not tell a clear story. Some are sympathetic to persons dispossessed and some are not. Interestingly, many thought that the non-financial losses and indignities suffered by those dispossessed were dealt with in community consultation processes. Similarly, they appeared not to recognise, for example, that no amount of prior community consultation could help find new friends for a schoolchild or an elderly person after it.
6.1 Professional interviewees
The professional interviewees had a combined total of over 350 years of personal experience in compulsory acquisitions in Queensland alone, and had collectively worked on over 4000 compulsory acquisitions. This experience included representation for both sides; that is, for the authorities and for the landowners. None of the interviewees had less than 10 years’ experience and none had participated in fewer than 100 compulsory acquisitions. Of all of the interviewees, only one504 had experience outside Queensland; that is, only one had any experience at all in a jurisdiction in which solatium was commonly allowed. That was experience working for the Federal Government, and did not touch on compulsory acquisitions. No other interviewee had experience in a jurisdiction which allowed for the payment of solatium
504 Interviewee 006. 130
The first question posed to the professional interviewees was about what sort of householder is affected by compulsory acquisition. In the words of one interviewee:
Normally, it is homeowners who are situated on main roads, or adjoining railway lines that are affected. Typically, they are the cheapest ... property type within an area. Their ability to reinstate themselves with market value seems to be a big challenge for them ... They're basically forced to buy another… sub-optimal location, but they have to then buy again on the main road ... that's what market value does.505
Another question asked interviewees which issues commonly arose in compulsory acquisitions. Each of the professional interviewees agreed, to varying degrees, that there was an emotional attachment between a homeowner and their home, and the attachment tended to increase over the period of time in which the home had been owned. Interviewee 005 said:
Sometimes there's unique issues associated with property that create difficulties for owners in accepting that they can have something that's going to be similar to what they currently have.506
Interviewee 002 was of the view that, because people were being compensated for houses rather than homes, anything above the physical value of the property was not covered by legislation. This interviewee conceded that up to $20,000 ought be available to help those who could not, because of the figure offered to them as compensation, relocate within the area from which they were being displaced.
Next, interviewees were asked how many homeowners complained of the inadequacy of settlement funds. Ten of the 12 professionals interviewed thought that dispossessed owners who complained of the inadequacy of their settlement — which they thought, in general, was about half of those who were the subject of compulsory acquisition — had emotional ties in the community. As Interviewee 010 said, they have “roots in that community, so in their cases the monetary compensation component doesn't properly compensate them for the loss of the sense of community that they've got”.507 Interviewee 008 said:
505 Interview with interviewee 005. 506 Interview with interviewee 001. 507 Interview with interviewee 010. 131
“It's a very emotional sort of thing particularly for home owners. Once you get over the hurdle and if they are accepting of the process and loss, then it comes down to obviously compensation and their perception of what should be included. Sometimes that's not always within the parameters of what we call disturbance or acceptable items of disturbance.”508
One interviewee went so far as to say that ‘voiding’ householders — that is, removing them from their community — did serious damage, and amelioration was a “really important part of trying to put people back in the same position as they were.”509 The general view was that this was not particularly important for “the younger people [who are] much more mobile”510 but “for others … it's almost an attachment to where they live to that property because it's been in their family for a long period of time.”511 In those cases, a typical view was that “the social, community, psychological [factors], those aren't addressed at all in the legislation and would be difficult to address on a monetary basis in most circumstances.”512
However, this does not mean either that it cannot be assessed, or that the impact cannot be predicted. Interviewee 006 said:
It's often a combination of the amount of compensation as well as those concerns about moving away from family, community, kids leaving their schools and friends and all that sort of stuff. The negative social consequences.513
The majority of the professional interviewees were aware of the difficulty of fully compensating dispossessed homeowners in circumstances where, to paraphrase one interviewee, the monetary compensation does not, in the eyes of the dispossessed owner, cover the emotional loss.514 This was particularly the case “where people have been in those communities for long periods of time, we're talking about individuals that might be sixty, seventy years old ... it's quite traumatic for them to pull up stumps and go somewhere else.”515
One professional interviewee expressed the contrary view, “I have my doubts that it can be achieved on a monetary basis. Emotional elements in many resumption matters ... aren't
508 Interview with interviewee 008. 509 Interview with interviewee 009. 510 Interview with interviewee 010. 511 Interview with interviewee 010. 512 Interview with interviewee 012. 513 Interview with interviewee 006 514 Interview with interviewee 012. 515 Interview with interviewee 010. 132
addressed with the present legislation, and would be difficult to address just on the basis of some monetary [payment]…”516 For this interviewee, that seemed to be sufficient justification for not making monetary payment in respect of emotional element at all.
The majority of professional interviewees indicated that it was acceptable to make payment of solatium, but there was no clear opinion as to who ought receive what sums. One view was that about 65% of displaced persons were happy with the amounts they received and that many of the rest were just being “difficult”.517 It followed, for him, that additional assistance was not merited. I have already noted that interviewee 002 was of the view that $20,000 was the maximum amount to be paid and only if there were difficulties staying in an area after dispossession.
Next, the interviewees were asked whether the attitude of the resuming authorities made owners recalcitrant in their dealings with those authorities. In many instances, the attitude of the resuming authority was seen as exacerbating problems. Here are two representative views:
A problem with the process is the owner is not entitled to any compensation or even an advance against a compensation until such time as the property is resumed from them. Even once resumed from them, they find quite often that they can't get an advance against compensation until such time as they make a claim for compensation … on many occasions where it is the resuming authority that's taken the initiative to take someone's property from them, but then refuses to provide any advance until the dispossessed owner takes their steps in the process.518
Most often there is little financial assistance offered to the dispossessed owner apart from after he makes a claim for compensation, at which point he is entitled, under the legislation to receive an advance against that compensation. That may not even include the fees incurred by the dispossessed owner, and payment for those fees reasonably incurred is usually at the discretion of the resuming authority. Sometimes they take the attitude that they possibly exploit the power of the constructing authority and putting too much onus of proof on the dispossessed owner to prove their claim. As a result of that I think that they lose the compassionate
516 Interview with interviewee 011. 517 Interview with interviewee 001 518 Interview with interviewee 012. 133
side of the process. It comes down to a more or less, ‘win at all costs’ approach from them.519
A not uncommon view taken by those working for resuming authorities was:
I think the framework ... for fair and equitable compensation ... is already there …[but] it's on a case-by-case basis. It's really up to ... the consultants for the claimant, and the consultants for the constructive authority [to ensure that occurs] ... If someone, for example, is suffering emotionally or psychologically, or is put in family stresses, that's well outside the scope of what I [as a valuer] ... am engaged to do, to concern myself with. Whether those things have been catered for ... I don't know because I'm not involved in that part of the process.520
That is, there is a perception that the role of a valuer is to reduce the liability, in economic terms, of the authority. Anything else, such as reducing the pain and suffering of people being ‘moved on’, fell outside the ambit of their role.
The fact that the only method of appeal was to take the matter to the Land Court was a concern for several professional interviewees.
[S]o many dispossessed owners ... [s]ee their losses on the emotional side as something that they can't be properly compensated for, and irrespective of the ex- gratia payment, might well remain dissatisfied, without the satisfaction being heightened by the absence of any appeal process against the decision made by a particular person…”521
The problem seemed to be with the adversarial nature of the acquisition process:
[T]he onus is on the dispossessed owner and their representatives ... to prove their claim. If the dispossessed owner's ... representatives think that they have a case, the owner is often put off by the attitude of the constructing authority initially in those negotiations on compensation because they get the impression that it's an uphill battle against a constructing authority. The legal representatives tell the dispossessed owner, ‘Well if you wanna take this, the next step is to take it ... to the land court’ and ... you know there is monetary risks associated with that.”522
519 Interview with interviewee 008. 520 Interview with interviewee 006. 521 Interview with interviewee 012. 522 Interview with interviewee 008. 134
Two interviewees put the problem squarely with the property offices of the construction authorities:
[S]ome people have absolutely no empathy at all … especially long term public servants who don't know what it's like to be on the other side…[P]roperty officers... just expect that once they serve the legal notice then that's it ... [and t]he government owns everything. They never empathise with the person who's being resumed… Having been on both sides, with probably 80% of my life in private enterprise side, acting for people against the government I've seen horrendously difficult property officers who have no regard at all of the [householder] ... that's probably the main thing ... no empathy.”523
[It’s the] ... attitude taken towards a negotiation process by the individuals acting on behalf of the resuming authority. That attitude, and the management of the resumption process, can make a very substantial difference to the view of dispossessed owner. There should be greater endeavours to educate officers of the resuming authorities in that context.524
Some unfortunate anecdotes demonstrated a lack of regard to the different personal circumstances of the dispossessed landholder. For example, interviewee 006 recounted the following story:
Now this property officer had gone in there and said to the [landowner, who had ]... just recovered from cancer, and said, you got to be out by such and such a day. You're going to have to hurry up and find another house and get your family moved. When they protested, her answer was, under the Acquisition of Land Act I can have you out in x number of weeks and this is all you're entitled to.525
The majority view seemed to be:
[T]he resuming authority should have an obligation to take the initiative. To do their quantification of the compensation, and to further that initiative by approaching the dispossessed owner with not only the dollar amount of the compensation they have in mind, but the whole methodology they've used to approach it.526
523 Interview with interviewee 006. 524 Interview with interviewee 011. 525 Interview with interviewee 006. 526 Interview with interviewee 012. 135
That is, the resuming authority ought not decline to deal directly with dispossessed owners until such time as they come forward with their position.527 It should work with them to reduce the non-economic loss suffered by those owners.
The next question posed to the interviewees concerned how non-economic losses might be reduced. The majority view of the interviewees was that compensation for displacement from home and concern about family, community and neighbourhood dislocation does not have to be in economic terms.
The majority of interviewees mentioned the concern amongst dispossessed homeowners about loss of property rights; first, because of the indignation that the state can strip them of a lifetime of home-making, regardless of how good the reason might be528 and secondly because of the imposition of having to find somewhere else to live, and the stress of actually moving the once it has been found. Responses included:
There is no compensation for their time, for the social and the personal side, so I think that's where people would find it difficult.529
[I]t's time out of your life that you never get [back] and it can be a long, disturbing, upsetting process so how can you equate that to money?530
All 12 interviewees were acutely aware of the effect of displacement from friends, family, and neighbourhood. Typical comments included:
The community aspect of it, they could never really get themselves back into the same community. They usually had to go elsewhere.531
[W]e're going to kick this person out of their property. That's a big issue that people [from the resuming authorities] need to understand. I don't know of any resuming authorities that actually goes through that at all.532
Next, the interviewees were asked what they thought should be done about the problem.
527 Interview with interviewee 008. 528 Interview with interviewee 012. 529 Interview with interviewee 011. 530 Interview with interviewee 008. 531 Interview with interviewee 010. 532 Interview with interviewee 009. 136
As one interviewee told me, there was a need for:
[T]raining [departmental officers] ... to realise that the power that they are exercising is [serious] ... you're taking someone's land. It has serious consequence for most people. They need to start ... factoring that into the way they negotiate rather than seeing that as purely a budgetary construction.”533
Another was more explicit:
[I]t's like a policeman who has the law on his side, there's two ways he can do things. He can just slap people on the head with the law or try to work ... with them. I find that a lot of [lifetime] public servants … adopt the form of ‘just slap people on the head, under the Acquisition of Land Act, we can do this and this ... No amount of policy will ever make it something black and something white. It just won't do that. It comes back to attitude and the attitude of the people implementing it.’534
Another wanted departmental property officers to recognise that, for dispossessed home owners, the resumption process was “a time of their life they wish that they'd never had to have gone through.”535
One mentioned a solution: “[I have] been involved in two or three examples where [the Authority] ... have appointed [an…] agent to go out and find a property because the people are elderly, or frail ... that they cannot look around themselves to find somewhere to go. [In another case] ... a fellow who had some psychological psychiatric constraints. He was under a protection order that he had to live within a certain [distance] of the Gold Coast Hospital ... This is on stage one of the light rail... Based on the amount of money that he was going to get for the value of his unit ... and it was a one-bedroom unit, he couldn't find a one- bedroom within that radius. The next available size was two bedrooms and that took him, I think it was thirty-five or forty grand over what the value of the property would have otherwise been. In that situation [the Authority] paid more money”.536
This seemed to be an exception to the general rule as expressed by two other interviewees:
533 Interview with interviewee 008. 534 Interview with interviewee 006. 535 Interview with interviewee 008. 536 Interview with interviewee 010. 137
I think we don't think enough about those basic needs of human beings like making sure that, say, for instance, the dispossessed owner is not left in a position where their self-esteem is affected or any of those other things are sort of derided to the extent that whilst they might get a satisfactory monetary compensation, I think we're not doing enough to cover the other side of the basics.537
Whether or not someone might claim for counselling for their kids, they're losing friends or something like that, I don't know if people think that far into it.538
The view of at least 10 of the 12 professional interviewees was that, where dispossessed owners were being vacated, the Authority concerned ought to “try to take [the] time and work with them and understand it's fairly emotional. It's not just about dollars.”539
The attitude of the resuming authorities mentioned above concerning the timing of payments was another aspect that interviewees thought could be addressed:
[I]t's up to the dispossessed owner to come to us and ask for an advance to be considered. That's an important issue that we can't overcome. Unless they come to us, they can't be paid the advance.540
So when one interviewee commented
just having to deal with government ... most of people who have had no real dealings in this nature, then they are suddenly thrust into a position where they've got to go and get a valuer and a solicitor and it can be a bit overwhelming.541 and then suggested,
we could offer the assistance as far as the relocation goes, as I talked about earlier… physical support in looking for alternative properties. If they needed that. Once again, horses for courses. Some people need it, some would see it as some invasion of privacy.542
It might have been an easy thing to simply ask, “can I help you with that?”
537 Interview with interviewee 008. 538 Interview with interviewee 006. 539 Interview with interviewee 009. 540 Interview with interviewee 004. 541 Interview with interviewee 001. 542 Interview with interviewee 001. 138
One option suggested was that the Authority could have greater involvement with psychological support or “social type work”, with trained staff to assist those being vacated to “get on with it, get it done, [m]ove on, put it behind you and get cracking again.”543
One possible part of implementing that option, with respect to elderly persons being dispossessed, was suggested:
[E]lderly people ... don't know the market, so I think there should be an onus on us. I have ... taken elderly people around to various agents to get them to show them around to see what they're going to be able to buy with the money we're giving them, before they commit to us”.544
When owners had put special efforts into developing specific parts of the property for a specific purpose, however, there was a responsibility on the authority to try to make specific provision to ameliorate the situation:
“There was one example I remember where someone was a recording artist…[so] they were provided with a demountable studio, it would have been worth a fair bit of money… That was outside of the compensation process …”545
Interviewees were unsure about how legislation or guidelines might be implemented to achieve the result of giving people non-financial assistance:
[I agree that you need] … physical assistance and support from a psychological perspective … you can try to formalise it in some sense. Like bring it into policy formally because it's being done anyway? I'm not sure how we do that like that could be a difficult thing to figure out. Even if it was a policy since it constructing authority's end, might not necessarily have to be embedded in the piece of legislation.546
In some cases, however, common sense ruled and guidelines were unnecessary:
We assist the owners where we can, if they have to shift we'll make arrangements for removals and things like that. Anything that we can do to help them in that process ... We try and step in as much as we possibly can, if they need that
543 Interview with interviewee 009. 544 Interview with interviewee 008. 545 Interview with interviewee 007. 546 Interview with interviewee 003 139
guidance, we're there to offer that guidance to them. Of course, what comes along with that guidance is also monetary value for living costs and things like that.547
Nonetheless, there seems to be some denial of the fact that dislocation or relocation possibly cause psychological damage. Tellingly, to a question about what more we could be doing to achieve the goals of the principle of equivalence, Interviewee 002, a senior member of the Queensland Department of Transport and Main Roads, who had been working in that department for in excess of 35 years, answered:
I think we have got it pretty well down pat, personally, from the [departmental …] perspective, because it's not ... I suppose when a compulsory acquisition is undertaken it's not just, get evaluation, pay money, they've gone through an entire process with community consultation, people assisting them the best they can depending on what their needs are. For example, if someone's got medical needs it hasn't been an unusual request to provide some support with doctors. It's a case- by-case basis. Each person needs to be assessed accordingly. I don't think providing psychologists and all that is going to be the answer, it actually has to be purely converting what you got into a financial component to allow you to re- establish, but obviously some people have special needs, such as dealing with someone with a mental capacity issue, so we work with a psychologist and that … it depends on the philosophy of the department and the officer handling the matter at the time ...there's some latitude ... in the way the legislations are applied [b]ecause we're all human, so it's that philosophy that's instilled in us, put yourself in the shoes of the other person. How would you like to be treated? If that's a reasonable request you take them through that. Some people don't have reasonable requests and therefore you've got to say no.548
And therein, in my view, lies the inherent contradiction in the answers. The problem is that the matter is discretionary, and requires a departure from the black letter law wording of the legislation. This is a departure that some officers interviewed were clearly prepared to make — for example, an allowance for packing the crockery or clothing of frail and elderly people as part of the ‘packing and moving’ component of the expenses to be reimbursed. Conversely, other officers, whose opinions were represented by some of the interviewees, justified in the opinion by the belief that they are bound by the strict interpretation of the
547 Interview with interviewee 004
548 Interview with interviewee 002. 140
legislation, were not prepared to include such discretionary matters in the allowances they approved.
On that direct point, interviewee 006, a person who had been involved in over 500 compulsory acquisitions in the course of a career of over 40 years both in private practice, and now currently in the Queensland public service, responded:
[The lack of empathy] comes back to the property officers themselves, so some [property officers…] have absolutely no empathy at all ... they just expect that once they serve the legal notice then that's it. The government owns everything. They [the property officers] never empathise with the person who's being resumed. I see that especially [in] long term public servants who don't know what it's like to be on the other side. Having been on both sides, with probably 80% of my life in [the] private enterprise side, acting for people against the government, I've seen horrendously difficult property officers who have no regard at all of the person who they're resuming from … that's probably the main thing, I think that. It's just no empathy. They see them as the enemy, and of course the people who live in the house see the government as the enemy.
This prompted me to ask if the professional interviewees see it as an adversarial position:
That's it, whereas from my point, since I've been in the government and having seen the other side ... I always go and say, what can I do to help you get through this? You tell me what I can do to help you, whereas most of the people that I work with here tend to think the other way, how can we get them out. Usually, if you start working with people, you'll end up in a good position with those people and economically sometimes it works out just as well anyway. I think it's … [a] problem that I think public servants have when they have, it's like a policeman who has the law on his side, there's two ways he can do things. He can just slap people on the head with the law or try to work through with them. I find a lot of public servants who have spent their life in the public service adopt the form of just slap people on the head, under the Acquisition of Land Act, we can do this and this.
Each discussion with professionals included an introduction and discussion of Maslow’s hierarchy of needs. None of the professional interviewees believed that the current Queensland legislation took the hierarchy of needs into account.
Interviewee 006 thought that:
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I don't know how you apply it, but they are very real and I think community is one of the biggest ones. People like to stay in their communities, absolutely. In this particular case, these people just didn't want to leave. 549
Interviewee 008 was somewhat partial to individual claims, in the face of the almost overwhelming power of the State bureaucracy:
[S]itting on the dispossessed owner's side of the fence, sometimes [for] the construction authority, it's purely about money. It's not always about the psychological side of things, [how dispossessed owners] feel necessarily. Sometimes [property officers] take the attitude that they possibly exploit the power of the construction authority and putting too much onus of proof on the dispossessed owner to prove their claim. As a result of that I think that they lose the compassionate side of the process. It comes down to a more or less to a ‘win at all costs’ approach… we [as property officers] are very much focused on making sure that the dollars are there... I think we don't think enough about those basic needs of human beings, like making sure that, say, for instance, the dispossessed owner is not left in a position where their self-esteem is affected or any of those other things are sort of derided to the extent that whilst they might get a satisfactory monetary compensation, I think we're not doing enough to cover the other side of the basics…
...you're taking someone's land. It has a serious consequence for most people. They need to start recognising that and factoring that into the way they negotiate rather than seeing that as purely a budgetary construct… I think training those people within the construction authority to realise that the power that they are exercising is a serious power.550
The views of interviewee 007, an independent valuer who had 20 years of experience, only within Queensland, working for both the government and for claimants,that “ I [only] concern myself with … assessing market value” was typical of the property officers described by interviewee 006.
549 Interview with Interviewee 006 550 Interview with Interviewee 008 142
6.2 Dispossessed Owners This part of the study consisted of individual one on one interviews with 15 persons who consented to face to face interviews and 17 persons who preferred to respond by telephone. Communication in face-to-face meeting formats with large numbers of interviewees where complex problems were being discussed took a significant amount of coordination and time. In order to ensure the quality of data and given its sensitive nature, it was decided to persist with interviews on an individual basis and not in group format.
The interviews adhered to strict ethical standards, in accordance with ethics committee clearance, ensuring informed consent and avoidance of harm to those who consented to participate. Consent forms, and an information sheet concerning this research project, were emailed or posted to each volunteer. As with the professional interviewees, I took care to ensure that consent was voluntary and that each interviewee understood the purpose of the research project, and how I would collect, analyse and use the data as part of the project. A copy of the interview question sheet is included in the Appendices. Consent to participate in the survey was a precondition of being engaged in the interview process, which meant Interviewees could not be interviewed unless they had previously provided their consent. All interviewees have been given code numbers to protect their identity.
Interviewees were between 30 and 75 years old, predominantly with at least Band 5 IELTS English, and had lived in their local (pre-acquisition) area for a minimum of five years. Whilst younger interviewees seemed more familiar with methods of social inquiry, and with interview situations, older interviewees seemed to find the situation disconcerting and many were sufficiently unfamiliar with phone interviews that face-to-face interviews were necessitated. Initial questions were worded and phrased consistently across telephone and face-to-face interviews. Persons in my sample who were interviewed face-to-face had a mean age of 63.5 years. Persons in my sample who were interviewed by telephone had a mean age of 68 years.
Each interview took approximately 45 minutes to complete and each was audio recorded. Baseline interviews were conducted with 35 persons; three interviewees gave answers sufficiently vague as to lead me to believe that the answers would be of no value, and those answers were not included in the analysis. There was no need to institute retention strategies to prevent attrition, as there was only a single interview conducted with each interviewee, and apart from sharing the results of this research project, I do not envisage any follow up.
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122 displaced owners were approached to participate, and 32 responded and agreed to participate. The 122 potential candidates were identified by review of the Queensland Government Gazette, Transport and Main Roads publications for the compulsory acquisition of whole owner occupied residential properties under the Acquisition of Land Act 1967 for the Airport Link, Northern Busway and Gold Coast Light Rail projects.
Approaches were only made in the English language and this might have excluded the statistically small number of persons in the target neighbourhoods (approximately 6% in Brisbane) who were new arrivals, or who did not speak English in the home. The target areas in Brisbane had a high number of people with post-secondary education and therefore the language gap was not seen as being important. Relevant figures were not available on the ABS website for the Gold Coast.
Interestingly, no person who had been the subject of compulsory acquisition of a home owned for less than four years volunteered to provide any response. Whilst including a control group might well have decreased the likelihood of alternative interpretations of the answers, the question being studied did not lend itself to a control group.
Initially interviewees were asked questions such as, "How long had you been in your home?", "Had you ever renovated your home? If so, how recently and how long did the process take?" and "Did your home have special memories for you?" I also asked questions about children, gardens, and membership of local associations such as sporting clubs.551
To ensure data comparability across the spectrum of interviews, variables were kept constant to the largest degree possible. It was not possible, because of the small sample size, to concentrate on any particular age range, educational or employment backgrounds. Female interviewees tended to express stronger feelings about the experience of compulsory acquisition than did men, although men claimed to have done more research into the possible profits being made by developers. As there were only 32 interviewees in total, none of these differences was found to be statistically significant -— but results provide indications mostly in line with the survey findings.
The responses included herein have been very minimally redacted, to remove expressions such as "a bit", "you know", "I mean", "actually", "probably", "I think", "just". This redaction does not affect the substance of the responses. Interestingly, three of the older interviewees
551 These are detailed on the spreadsheet of non-professional interviewees in appendix D. 144
used the expression, "knockdown price", an expression meaning an extremely cheap price that has a metaphorical quality, in that the landowner price was 'hit' by it, as well as possibly meaning that, at that price, the house was only fit for knocking down, a proposition that the interviewees obviously rejected.
The questionnaire used had 30 structured questions and can be found on the spreadsheet in appendix D.
6.3 Results 21 interviewees had originally owned houses in the Brisbane suburbs of Lutwyche, Windsor and the city end of Kedron which were acquired so as to facilitate the building of the Northern Busway and the Airport Link.
These suburbs, in 2006, according to the Social Atlas of Brisbane, were rapidly gentrifying with both low numbers of children and low numbers of persons aged over 75. Unemployment was relatively low on the northern section of the project alignment in 2006, although on the southern section of unemployment was higher than the average for Brisbane. A relatively high number of households in this southern section had household income of less than $500 per week in 2006.
11 interviewees had originally owned houses in the Gold Coast suburbs of Southport, Parkwood and Arundel. These suburbs, in 2006, were relatively low-income suburbs despite the close proximity to the beach, with higher unemployment than both the Gold Coast average and the Brisbane average. In comparison both to the Gold Coast average and the Brisbane average, the owners of houses on what became the route of the Gold Coast light rail link had lower education, and lower average income.
It was not surprising that older interviewees in both centres, who had been in their houses longer, had more features of their homes that they particularly liked. Some had had the opportunity, over the years, to build extensions on their houses to house specific hobbies, or to convert former bedrooms for those hobbies once their children left the house.
Less than half the interviewees indicated having sufficient means, including the proceeds of compulsory acquisition, to exchange ‘like-for-like’; that is, to move into a house of an equivalent standard to the one they left. At the day-to-day, logistical level, all interviewees had a considerable amount of power over where to move, but reported limited real estate
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for sale in the area in which they had lived. It followed that they did not have complete control over where they relocated.
Interestingly, few interviewees were reduced to rented accommodation. For those that did move to rental accommondation, it appeared that this was a transition to supported accommodation because of their age. Three of this group, and an additional five senior interviewees, complained that, whilst they had been able to use the compulsory acquisition process as part of a downsizing exercise, the difference between the price of the house they had sold and the apartment they had bought meant that they lost some pension and welfare benefits. Older interviewees had paid off their house by the time of the compulsory acquisition and three interviewees reported inheriting their homes.
Several interviewees reported feeling anxious or depressed as a result of the compulsory acquisition process, but there was no correlation revealed between feelings of anxiety or depression and any amount of capital gain achieved. There did, however, appear to be a negative correlation between the period of time in a former environment and ease of adapting to a new environment, unless that new environment was with the interviewees’ own children. Transition to supported accommodation or retirement accommodation tended to have a negative effect, and a common view amongst senior interviewees was that they would have preferred to leave their own homes at a time of their own choosing. Two were of the contrary opinion, that reported that they probably would not have left the house if the decision had not been made for them, and that things had turned out for the best.
Some senior interviewees had taken the opportunity to move in with adult children, and to use the proceeds of the sale of the property towards improving their children’s homes. This process appeared tactically to be fraught with difficulty, because none of that group of interviewees had taken steps to ensure that they were protected in the event that either the new family home had to be sold because of a breakdown of the marriage of the child and the child’s partner (the parent not being a party, of course, to that relationship), or in the event of a breakdown in the relationship between the parent and the child or the child’s partner (or perhaps both).
When I asked dispossessed owner interviewees to compare their old and new neighbourhoods, former neighbourhoods scored slightly above current neighbourhoods in terms of perceived wealth, and lower in terms of perceived diversity of living standards. Former neighbourhoods scored slightly above current neighbourhoods in terms of perceived
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community spirit, trust, individual senses of pride in the neighbourhood, and individual senses of belonging. No non-professional interviewee ranked their new community as more trustworthy than their old.
Fourteen interviewees from Brisbane and eight interviewees from the Gold Coast who had moved to a different district had at least one parent, child or sibling in their older district and in further discussion, a common complaint was of a disruption to that relationship because of travelling time, travel costs and distance. One interviewee also complained of having to move quite some distance because of cost, and having suffered the additional cost of the need to purchase a second car and spend some six additional hours each week in commuting, which had an impact on family and leisure time.
Not a single interviewee said that their social participation, or levels of trust, in their new neighbourhood was better than they had in their old neighbourhood. None said that they joined in social events ‘rather a lot’, and none was able to say that he or she felt included in the new neighbourhood ‘rather a lot’ although just over half claimed to have both taken part in social events, and felt included, in their old neighbourhoods. Furthermore, twice as many felt that they knew the former neighbours well enough to ask for favours, as felt this about their new neighbours. Finally, far more people knew the facilities in the former neighbourhood better than the new neighbourhood, and interestingly, not a single interviewee had joined a church in their new neighbourhood as a way of getting to know people. More than half the interviewees from each centre did not know where the nearest community centre, library, or cinema was in their new neighbourhood.
More than half the interviewees reported not being able to stay in their original areas, and the most common reason was cost. No interviewees reported moving voluntarily except into retirement accommodation. In particular, parents of young children on the Gold Coast appeared to be particularly inconvenienced, one younger family having apparently wasted the effort they had made to embed themselves within a local community, only to find that the only house they could afford at short notice was some 20km away from their old neighbourhood, the children’s schools and their own workplaces.
In an ideal market, there would have been the ideal house available at an affordable price in the same neighbourhood; that is the idea of the principle of equivalence. It may be that such a house was available before, or after, but not at the exact time of, the interviewee needing to relocate. Houses available may not have been to the interviewee’s taste. I
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therefore did not believe that asking interviewees why they had picked a particular area for relocation would have contributed anything substantial to this project.
Many Interviewees, and particularly those who were older and female, seemed to have lost the attachment to either their kitchen, their garden or both. Male interviewees were more likely to complain that they had lost the use of their garages. Those who specifically mentioned that they had moved from houses to apartments appeared to have lost a ‘hobbies area’, and spoke of disempowerment and boredom that ultimately can cause psychological distress. Each had moved into a different neighbourhood (including some interviewees who moved into new apartments in South Brisbane, which one interviewee described as being ‘soulless’) where they reported being unable to access local information, emotional support, or community assistance, and found it difficult to find specific social settings where they believed that their social beliefs, norms and goals were shared by others. The fact that downsizing left some interviewees better off financially did not seem to detract from the indignity of the compulsion of the exercise, nor did the short-term profit make up for the costs many experienced because of loss of things like local gym memberships or deposits on minimum contracts for internet or cable TV subscriptions.
Again, with older interviewees, the task of finding a new home, negotiating with banks and real estate agents, negotiating new mortgages, and even tasks which younger persons might do online such as notifying of changes of address, seemed to be both time-consuming and stressful. Assistance with predictable tasks, such as packing, or finding new mortgages, would have been appreciated by older interviewees. Few were able to call on friends or family to assist them to help settle into their new homes, partly because friends and family were busy, but often because of the increased distance. In short, the longer the time a interviewee had been in his or her own home, the longer the moving task tended to take and the more assistance they felt they needed (but did not necessarily receive).
The last two questions in the questionnaire encouraged an open-ended response. Much of the material in the excerpts below came in answers to those two questions.
6.4 Excerpts of interviews with homeowners
Many interviewees expressed their attachment to a particular space :
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It was my parents' house, we always lived there. My mother was ill, so I looked after her. It wasn't fancy, but it's hard not to love somewhere you know so well.
We’d lived there almost our entire marriage, after our second was born. My wife really took pride in the cottage garden, and I grew vegetables.
Features of their former houses that interviewees were attached to included their gardens, the graves of family pets, ashes of relatives scattered in the gardens, the design of the kitchen as the heart of the house, space for a bicycle workshop, a shed with a craft cupboard with a fold-out desk, bookshelves in the study, a music room, space to cook, space for work on motorbikes, space for the caravan, a shed for a plumbing business, and closeness to work or children’s schools.
Particular problems with the relocation process included those related to the failure to make allowances for the cost of installation of solar panels, heat pump, water tank, extra glazing, or mobility safety rails in bathrooms for the elderly.
Only one interviewee reported getting help to find a house:
They did show me around a few units, however, helped me find somewhere else to live. And they got someone to talk to Mum but she died before we moved. Broken hearted.552
Interviewee 7 first found out that the government wanted to acquire her home when she got a notice in the mail:
I received some sort of notice, which basically invited me to sell voluntarily, but only at a price which the government had worked out. I was told that if I wouldn’t agree to sell at that price, they will take it off me [at] that price anyway, so I didn’t see that I have much choice.553
Interviewee 12 was typical of those who had no motivation to settle in a new area:
I didn’t particularly want to leave the area was in. I’d been in Kedron for 13 years, I knew my way around, I felt comfortable, I knew people in the local shops, local
552 P04, A11 553 PO7, A45 149
tradies, I’d played netball with quite a few of them or their wives, I wouldn’t have left if I didn’t have to.554
This interviewee feels the forced move had a dramatic negative effect on her life:
Well, it came to arguing with my ex, because we weren’t going to be able to afford to live in Kedron, and with his bad back we weren’t going to get another mortgage. I wanted to move back to Townsville, I could have kept on teaching there, but he didn’t like the heat. Eventually I persuaded him to retrain, get his certificate IV and start teaching auto-electrics in TAFE, but he could only get contract work, and the banks weren’t prepared to lend to someone who could only get contract work. So it drove us apart, that, it destroyed our marriage. His sister had become widowed, and suddenly he announced that he was moving to Dubbo to live with her, got a job in the TAFE in Parkes. There was really nothing left for me to do but move in with the daughter, well she had two littlies and needed a hand but I knew at that moment that I would never own my own house again. Heartbreaking. I did some part time teaching in Maleny until I turned 65, but I couldn’t take full-time work, I was too full of antidepressants. Wasn’t the course I expected my life to take really.555
At least one other interviewee blamed the stress of the move for the breakdown of her marriage, making a total of 2 of 32, or some 6% (but given the small sample size, an indicative, rather than reliable figure). She complained that as the couple were splitting up and as each was buying a unit with the proceeds of the sale of the house, each would have had to pay conveyancing costs but only one conveyance would be reimbursed:
They were so mean, they said as we were splitting up and we had lawyers anyway we would have sold anyway so they wouldn't even pay for the conveyancing on both units, we each bought one … and they caused the breakup.556
Some older interviewees thought that they lacked the personal resources important for their ability and motivation to settle in a new area. A typical response from a 67-year-old woman from Lutwyche:
If you mean that youth and vitality is a personal resource, sure, I lack that personal resource. And I’m not saying that I was targeted, but my son works in aeronautics in the US and my daughter is an obstetrician in Melbourne, so it wasn’t possible for me to ask either of them to
554 P12, A45 555 P12, A45 556 P10, A42 150
return to Brisbane to help their ageing mother find a new house.557
The sole Maori contributor, Interviewee 18 from Windsor, had an interesting case, because her social situation, once removed from a neighbourhood in which she had been living for 26 years, was characterised (in her new neighbourhood) by low status, a small social network, her own comparatively low education and the racism of the other inhabitants in the area in which she found that she had to live. Although when living in inner Brisbane this 59- year-old had done unskilled work, the areas she lived in had gradually become gentrified, and she had a wide social network through involvement with the church, so that she was able to earn much more money as a cleaner and childminder (and similar jobs) then she was able to earn when she relocated to an outer Brisbane area.
She had moved from a house where there were anywhere up to 8 people, “Myself, my late husband, whilst he was alive, we had 4 kids, sometimes the cousins”. Her current situation is very different: “It’s a unit, and it’s just me now. I gave some money to the kids, and they will let me stay with them, but they have moved so far away…”.
She went on to say:
In the older areas of South Brisbane there might have been one Maori family per street. It’s not that we wanted to live in proximity to other Maori, because Brisbane isn’t Auckland and there weren’t that many Maori. But it was a working-class area, and there weren’t complaints about ‘unseemly’ Maori behaviour. Also, at least in the early days, the only way we could pay the house off was to tolerate overcrowding. We were Seventh Day Adventists, so we didn’t have the sort of complaints that we found with other Maori families when we were living in Auckland, tensions over things like noise at ‘unseemly’ hours, incessant drinking, foul language, or barbecuing pigs in the backyard. The Church teaches us not to be above such modest work as cleaning, taxi driving, or picking fruit, and in those early days there was plenty of work for anybody who wanted it, even if from time to time you had to travel to get it. So, plenty of the family use this place as a base in the early days, and that’s how Dad and I started to pay the mortgage. Well now I can’t see or drive so well, I buried my husband probably 10 years back, I’m stuck in an outer suburb and I can’t visit anyone. No-one here can afford cleaners and the kids just run riot
557 P20, A39 151
after school, they’ve never heard of a babysitter. I’m 30 km from the nearest Seventh Day Adventist Church.558
Other ethnic minorities also found relocation difficult. Interviewee 19 from Lutwyche, a 40- year-old woman who identified as Chinese, said:
No-one told me about the employment and training opportunities in Inala. We suffered alienation, we were lonely, the new environment was so different and we were so far from the relatives, we had no help from anyone finding new jobs, or a new house, or schools for the kids … The kids felt lonely, that they didn’t belong … this led to both personal difficulties and them acting up. The different ethnic mix showed up differences in behaviour and lifestyle, their different speech patterns didn’t fit well in Logan and were often frowned upon, other kids teased their ‘posh’ accents. It’s almost as if all non-bogans in Logan are expected to act like they’ve come off the set of Housos.559
At the same time though, the majority of interviewees expressed feelings of loss, often because in their later years they were being denied, due to the relocation, of features of their former home that had been installed for enjoyment later in life. Interviewee 30, a 52-year- old woman from Southport, had been living with her husband and two children in a 22-year- old weatherboard home for 18 years.
When we had to move, I lost everything that I physically enjoyed in life. I didn’t lose my husband, I didn’t lose my kids, but I lost the kitchen which I had specially designed myself for my cooking, and had assembled over so many years with special places to put everything; I lost the garden I had been carefully tending for 30 years; even if I had the money to replace everything, this is work that I did in my 30s and 40s, which I am not physically capable of doing now that I’m in my 60s.
And, well, I got depressed, and that affected my job performance. So, the boss sacked me, said that I was no longer up to front-line reception work, and I probably wasn’t. I haven’t been able to get a job since. My husband is still in the public service, but my time as front of house for a public library is well and truly over. That didn’t aid my depression at all.560
558 P18, A45 559 P19, A42,45 560 P30 A45 152
Critically, counselling services were not made available to any of these people, despite the fact that the forced relocation had clearly affected marriages, mental health, employment and family ties.
Communication with some groups was also an issue. Interviewee 32, a young Korean girl who had been present when her parents were ‘assisted’ by an interpreter, reported that although an interpreter had been supplied by the construction authority, the translations supplied were inadequate. That is, the translator was not up to the job. The interviewee had wanted to do the translation herself but was prohibited because of her juvenile status from participating in the discussions. She felt that, had she participated, she would have done a better job of interpreting herself.
Interviewee 17, a 28-year-old female from Kedron who was living with her elderly mother, reported that her mother had received some unspecified counselling:
They did pay for mum to talk to someone but they said that this was a really special extra that they weren't meant to give us.561
Whilst few short-term residents reported that they had developed strong community ties, long-term residents did have such ties and had invariably found it difficult to develop relationships of trust in new neighbourhoods, even in retirement centres.
Economically, most interviewees reported losing money on their relocation and more than half had to leave their original areas, with one couple having to move 24km, which meant that in order to maintain the continuity of work and children’s schools, each had to commute an additional hour a day and also they had to become a two-car family instead of a one-car family, leaving the household around $120 a week and 10 hours of commuting time worse off.
As discussed both in the literature review and in the theoretical discussion in Chapter Five, these effects of forced relocation are known, understood, predictable and foreseeable. Interviewee 39, a 36-year-old male from Parkwood, thought:
I guess we were all dealing with our own problems, the houses going to build the tram line, no-one had time to help anybody else deal with anything else. The biggest thing I remember was that on the day we had to leave, there was some big
561 P17 A12 153
fundraising event for some international disaster, it might have been an earthquake in New Zealand, I can’t actually remember what it was, there was some huge support concert they held, somewhere in Brisbane, and raised some funds and whatever. I can remember thinking, those people in Christchurch, okay they lost their houses too, but they are in another country and they have insurance, here we are in Brisbane’s backyard, why can’t we have some of that community support?562
6.3 Discussion
The interviews were not designed as a sociological or psychological study of social alienation. Nevertheless, this study shows that the compulsory acquisition process delivers both a substantial actual loss in terms of moving house, and a significant drain on persons subjected to that process. Problems reported related to the process of the physical move, difficulties with completing paperwork, and for parents of young children, difficulties with finding new schools and acclimatising children to them.
The answers validate the comments of Elliott, in whose doctoral thesis appear the following lines, analysing a focus group he conducted:
Closer analysis … reveals repetition of the words, ‘it’s my home’…[M]oving up the hierarchy of needs, a house becomes ‘home’, part of a person’s identity and how s/he reacts to the outside world … Such sentiment was identifiable throughout the group sessions. Phrases such as ‘I am not going anywhere’ and (whatever its monetary value) ‘it doesn’t matter, I do not want to leave’ suggest the need for confidence in the continuity and predictability of life which home ownership provides … ‘practical consciousness, together with the day-to-day routines reproduced by it, help bracket ... anxieties not only, or even primarily, because of the social stability that they imply, but because of their constitutive role in organizing ... existential issues’. This insight raises the issue of whether unbridled commitment to a home reflects not traditional values but, rather, a reaction formation to the risk society via a means to establish tangible roots for an uncertain self. 563
None of the professional interviewees placed any value on the involuntary separation from place, which the literature reveals as an academic concept, and as the displaced owners
562 P39 A45 563 Peter Elliott, ‘Power Lines and Homeowners: Risk Perception, Reaction and Property Value Effects’, (Published Ph.D Thesis, University of Queensland, 2013)
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interviewed in this chapter recount. No value is placed on the destruction of the “tangible roots for an uncertain self”.
The research questions and responses provide compelling evidence for the following considerations :
1.) Persons who are the subject of compulsory acquisition would benefit from the supply of persons trained to pack and move their belongings. Particularly older interviewees seemed to have difficulty with this issue, and the longer they had been in a home, the greater the difficulty. Sometimes it appeared that people who were downsizing needed assistance even to bag up old clothes, books, furniture to give it to an op shop. 2.) Persons with younger families who are the subject of compulsory acquisition benefit from the provision of people who would introduce them to new schools, and the children to new classmates and community facilities. Time-poor families with young children seemed to be under an immense amount of pressure because of the compulsory relocation, and seemed not to have the time to connect their children with new communities. the provision of child-care to people who had to take time to find new housing would have also helped. 3.) Persons who were unfamiliar with the process of dealing with banks and real estate agents would benefit from the assistance of a ‘client advocate’. This matter seemed to depend on the level of sophistication of the person being relocated, but generally, interviewees were looking for assistance from people whom they might be able to trust, and banks and real estate agents do not rank highly on that list. The provision of someone they could trust might ease the feelings of alienation and powerlessness reported by nearly all of the interviewees. 4.) Persons relocating to an area that was 10 km or more away from the original area benefit from being introduced to local community centres, libraries, social groups, churches, or even shown where facilities such as shops, medical centres and banks. Should they be shown how to use car pools, or to access local childcare centres which might have vacancies? Again, this idea depends on the comfort people have with technology. Some people are content to find new places by simply using an online map service, although that does not tell you which shop has your particular preferred brands, or which doctor bulk bills. More importantly, there are no apps which tell you which childcare service nearby has the shortest waiting
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list, nor the most appropriate schools, something which is hard to measure (as opposed to these with the best results, as that is something that can be measured)564 or best coffee.
564 On the problem of subjective measurement see generally Tom A Elasy and Gary Gaddy, ‘Measuring Subjective Outcomes - Rethinking Reliability and Validity,’ (1998) 13(11) J Gen Intern Med, 757, which is authority for the proposition that scientists can’t do it either. 156
Chapter 7: Discussion
‘We have profoundly forgotten everywhere that Cash-payment is not the sole relation of human beings.’565
This chapter is an attempt to analyse the practical responses from interviewees as shown in Chapter Six, and questions raised, in the light of the theoretical material covered in Chapters Four and Five. It also attempts to draw conclusions and findings from the data, in order to contribute to filling the gaps in the literature identified in Chapter Two. In short, the major points arising from Chapters Five and Six are shown in the diagram below:
Figure 5: Major Findings of Chapters 5 and 6
565 Thomas Carlyle, Past and Present (Bibliobazaar, first published 1843, 2008 ed) 178 (emphasis in original).
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This discussion chapter therefore first looks at the public reaction to compulsory acquisition, and then compares it to the situation of 100 years ago when the Brittish, Scott Committee recommended the abolition of payments of solatium, without giving any reason for that recommendation. It then addresses risk management, and attempts to find a possible legal analogy which would suggest a better form of risk management. Finally, it makes recommendations.
7.1 Public reaction to compulsory acquisition
The possible risks flowing from compulsory acquisition, in so far as they directly affect dispossessed landowners, will differ from acquisition to acquisition, and from landowner to landowner. As a general comment, since approval was given for this research project, serious evidence of bad behaviour has been uncovered both within Australian financial institutions566 and the Australian Taxation Office,567 including large-scale fraud568 and improperly harsh use of powers. The responses of displaced interviewees suggest that equally harsh powers were used against them.
Given the size of the operation of Transurban, as discussed in the introduction, the lack of empathy shown by a number of professional interviewees in Part 1 of Chapter Six of this research paper, and the responses of the displaced homeowners in Part 2 of Chapter Six, I infer that the size of the State bureaucracy, and the size of the major provider of State services, has led to a disconnect between government practices and the rights of displaced homeowners with outcomes being weighted against the homeowners in the process of freeing up land for the building of roads and railway infrastructure. It is similar in many respects to the treatment of some customers by the banks or small businesses investigated by the Taxation Office.
This situation does not have to be intentional; as the comments of interviewee 006 showed in Chapter Six, workplace culture or business practice simply reproduces what the theorists Beyleveld and Brownsword, Hart and Oppenheim569, noticed over 50 years ago: officials, including valuers and public servants do not treat rules as imposing moral obligations. The
566
lack of empathy revealed by some of the professional interviewees, in the light of the real pain caused as shown by the interviews with dispossessed owners, indicates that indeed the system of compulsory acquisition in Queensland is flawed.
Generally, this view does not go down well with the general public. Kelo v City of New London571 and R & R Fazzolari Pty Ltd v Parramatta City Council572 were both cases in which a municipal government desired to force the sale of private property for a purpose, at least in part, private economic development. After all, the concept of market value requires “voluntary bargaining between the plaintiff and a purchaser willing to trade”.573
Kelo led to a public backlash, and in some American states, an immediate legislative response aimed at limiting the government's ability to exercise its power of eminent domain.574 In the US, as with Federal acquisitions in Australia, government takings of private property are theoretically unproblematic, because the owner is entitled to just compensation under the Fifth Amendment. However, as in Queensland, US acquisitions might not take into account the ‘subjective value’ of the land. Nadler and Diamond suggest that a psychological ‘subjective value’ exists where a homeowner has not placed his or her home on the market. It indicates that s/he values the property more than the market price of the property, otherwise, s/he would have previously sold her property for the market price.575
This leaves aside the difficulty of determining the market price. In the absence of an actual sale, this is achieved by valuation. However, valuation is not an exact science but an imprecise art, which is supposedly based on skill, or might be referred to as a ‘judgment call’ by the valuer.576 Differentials of 10%, 15% and even 20% amongst valuers of equal competence seem to be acceptable in the UK, because valuations “involve questions of judgement on which experts may differ without forfeiting their claim to professional competence”.577
571 545 U.S. 469 (2005). 572 (2009) 237 CLR 603. 573 Spencer v Commonwealth (1907) 5 CLR 418. 574 Janice Nadler and Shari Seidman Diamond, ‘Eminent Domain and the Psychology of Property Rights: Proposed Use, Subjective Attachment, and Taker Identity’ (2008) 5(4) Journal of Empirical Legal Studies 713, 714. 575 Ibid, 717. 576 Singer and Friedlander Ltd v Wood [1977] 2 EGLR 84 (UK). 577 Zubaida v Hargreaves [1995] 1 EGLR 127 (UK). 159
However, it is recognised that access to land is needed in order to enable every substantial infrastructure project. Land acquisition is the government’s tool for resolving the land supply problems needed to enable development of infrastructure.578
7.2 What has changed in the last 100 years?
The situation in Queensland is now the reverse of the situation in existence in England 100 years ago. The Recommendation in the British Scott reports579 to abolish solatium in England with respect to the public acquisition of private land, seem to have a basis in the fact that at the time of the post war reconstruction of 1918, development was passing from private developers to public developers. The land being repossessed belonged to large absentee landlords and was invariably slum housing. Those persons displaced were tenant slum-dwellers, not the owners of the land, and the slum-dwellers had the right to apply for the government housing then created.
The fact that the CLEM7 project was sold, in insolvency, for a fraction of the cost of its construction, to Transurban, indicates that Queensland’s privatised roadways are not necessarily built on the foundation of a solid business case; and yet they are still built. It was the investors who lost, along with the dispossessed homeowners. The profitable nature of the privatisation of Queensland’s motorways in the hands of Transurban was shown in Part 2 of Chapter Five.
A century ago, even given the undoubted benefit to England’s lower socio-economically grouped citizens from the massive public works programs of the day, the Scott Committee was also of the view that owners should receive fair compensation for consequential injury.
Even in Queensland, compensation principles extend to the price that the dispossessed owner would have been prepared to pay for the property taken rather than lose it, and this might include — although the interviews in Part 2 of Chapter Six showed that some claims in respect of these items had been refused — a value placed on arranging the following
578 Anuar Alias and Md Nasir Daud, ‘Payment of Adequate Compensation for Land Acquisition in Malaysia’ (2006) 12(3) Pacific Rim Property Research Journal, 326. 579 The ‘First Report to the Ministry of Reconstruction of the Committee dealing with the Law and Practice Relating to the Acquisition and Valuation of Land for Public Purposes’, (L Scott, Chairman), Cd 8558 (HMSO, 1918); The ‘Second Report to the Ministry of Reconstruction of the Committee dealing with the Law and Practice Relating to the Acquisition and Valuation Of Land for Public Purposes’, (L Scott, Chairman), Cd 9229 (HMSO, 1918).
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connections to the community to which a person has to move, particularly if that person is of senior years, disabled or otherwise socially isolated:
• finding a new doctor or dentist with whom a rapport can be established, as many surgeries do not accept new patients • finding a cleaner, or a plumber, or electrician, or handyman, as reputable folk are hard to find • disconnecting and reconnecting gas, power, water, internet and telephone accounts, as each may be covered by different (and possibly unfamiliar) resellers • removing and re-installing security systems and/or solar panels.
Compensation for consequential injury might also include — although again, the interviews in Part 2 of Chapter Six showed that some claims in respect of these items had been refused — the cost of ‘break fees’ on lock-in contracts as diverse as internet and gym memberships; bank charges on changing security used in respect of business loans or overdrafts; physical assistance and the time taken, especially for parents of young children, to settle children into new schools with new uniforms.
In short, such compensation is a premium to be paid in respect of the time necessarily expended by a person re-establishing these necessary ties at a time not of his or her choosing, because, contrary to the ideal in Spencer,580 s/he is not a willing seller. Indeed, given these many inconveniences associated with moving, it is completely understandable that some people do not wish to sell up and move.
Were dispossessed homeowners made aware of the profit distributed to the new owner of their home-sites from their compulsory dispossession, they might harden their attitudes somewhat, and I was careful during the course of this study not to include this sort of politicising comment. The imbalance between the time necessarily expended by the homeowner, and the expenses foreseeable but not compensated, on the one hand, and the amount of profit reaped by infrastructure companies on the other, is, I would suggest, one of the “great many [other] things” mentioned in the ‘hidden’ second part of the judgement in Livingstone v Rawyards Coal Co.581
580 Spencer v Commonwealth (1907) 5 CLR 418. 581 Livingstone v Rawyards Coal Co (1880) 5 App Cas 25, 39. 161
Where amounts in respect of these items are quantifiable, they might be recoverable as ‘disturbance’. However, given that valuation is an inexact process, and the construction authority is permitted to rely on valuations, it seems logical that once specific types of possible costs are identified, some guideline for assessment of damages in respect thereof ought to be applied. As was shown in Chapter Five, so are most claims with respect for personal injuries, which does not prevent claims for transport or workplace accidents being made. As to any loss which is foreseeable being included, this is the basis of tort law; for example, a loss of future income is dealt with, it was demonstrated, in the Queensland 2017 case of Mills v BHP Coal Pty Ltd.582 That case is authority for the proposition that if a move from one job to another was necessitated by a personal injury and a reduction of salary followed from that change of job, the reduction would be recoverable from the wrongdoer.
It follows that, in the absence of the restrictive nature of Queensland’s land acquisition system, the same principle would apply where forced relocation meant that a person had to take a lesser-paying job in order to meet, for example, childcare responsibilities, or to travel further to an existing job at higher cost, and also consequent loss of spare time, and to be unable to work the same amount of overtime because of responsibilities to ageing parents. Any such compensation claim could be limited to a sunset clause term.
It is argued that, with respect to ageing dispossessed owners for example, the provision to each household of physical assistance at each end of the move, in the form of packing and unpacking assistance, time with a client advocate for orientation help and introduction to schools, banks, medical centres, and so on, would limit the degree of anguish and stress.
7.3 Managing the risk to dispossessed landowners
The possible risks flowing from compulsory acquisition, in so far as they directly affect the dispossessed landowners, will differ from acquisition to acquisition, and from landowner to landowner. As has been noted earlier in this thesis, the constitutions of many countries require payment of adequate compensation in respect of these acquisitions, including, at a federal level, the Australian Constitution. In Queensland, the legislation provides for market value and other damages and, though these appear equitable in law, in practice landowners still suffer. The interview data summarised in Chapter Six indicate that common risks faced by dispossessed landowners, and caused by the acquisition, are of the type discussed in
582 [2017] QSC 184 (McMeekin J 31 August, 2017).
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Part 3 of Chapter Two. That is, interfering with an individual’s sense of place or attachment is likely to cause some sort of mental harm, as well as the difficulties of needing to find new schools, employment, social and recreational facilities, or to make new friends and establish new contacts for the provision of everything from car repairs to health services.
In general, as the literature review suggested and as this project has demonstrated, there is one type of harm that is likely to affect a particular demographic — such as that of settled older folk — and possibly a different one that will affect a different demographic — such as families with younger school age children. Another affects people who find it more troublesome to commute to their workplaces.
We cannot predict the specific harm, any more than we can predict the actual bones which a pedestrian will break by tripping over uneven pavement, but a general idea will arise from the context of the activity. We can predict that, as the data collected in the questionnaire showed, most displaced residents had few means to contribute to and influence redevelopment in their favour, and that their communities tended to lack cohesion, making them vulnerable to the exploitation of property-related interests comprising professional developers, those property owners who would benefit from the acquisition of nearby properties, governments keen to garner popular support from the success of a particular development, and local authorities which would benefit from increased rates and charges from non-acquired properties. We can also be guided by studies that report that resettled or dispossessed household members show heightened internalisation problems with high anxiety and depression scores; amongst younger parents, this particularly leads to enhanced risk of family discord and divorce.583
7.4 A legal analogy
At law, people in certain relationships to other people have a duty to reduce the risk those other people face. This usually takes place in the reduction of risk of personal injury, which is why there are safety notices at many public facilities, including beaches, warning signs and guard rails on bridges, yellow markings on the floors of factories, safety brochures supplied with power tools, and compulsory induction sessions on construction work sites. Under workers compensation legislation, workplace stress has been recognised as a contributing factor to psychiatric ‘injury,’ with claims being available to workers in
583 Jessica M. Fear, et al, ‘Parental Depression and Inter-parental Conflict: Children and Adolescents’ Self- Blame and Coping Responses’ (2009) 23(5) Journal of Family Psychology 762. 163
Queensland, and a well-run business will have codes and practices in place to reduce this risk as well.584 In Queensland, the practice of risk reduction is mandated by the Workers' Compensation and Rehabilitation Act 2003 (Qld), s 305B.
Consider, for example, the example of a construction work site. There are many codes of practice that outline the risk management process for common tasks — for example, risk of falls, hazardous manual tasks, hazardous chemicals in the workplace, work environment and facilities. Each code contains useful management methodologies, checklists and examples of reports as to how to identify risks in the workplace and manage them appropriately. The construction industry is well known for the thoroughness of its requirement for documented training procedures, supervision, on-the-job training and use of job hazard analysis worksheets.
A similar method of risk reduction is used in the fitness industry. Eickhoff-Shemek et al discussed the need to develop, and then observe, established benchmarks of expected behaviour in order to reduce not only the occurrence of events that can lead to negligence claims, but also the number of lawsuits resulting from such claims.585
These measures reduce the total risk of payout, because where the employer or facility operator can reasonably predict that an injury might occur, and there are steps that could be taken to prevent or minimise the risk of injury, that action should be taken where reasonably practical so to do.586 The obvious difference between this situation and that of an acquiring authority is the construction company is at risk of civil action for negligence. In contrast, there is no similar action legal available to affected owners against an acquiring authority, apart from those actions available via Land Court proceedings. As such, there’s little incentive to address ‘potential negligence’ concerns as part of the acquisition process.
Therefore, I recommend the introduction of ‘performance standards’ to define the authority’s obligation in terms of the risk reduction that compulsory acquisition authorities must achieve, or problems they must solve. Such standards could then leave it to the initiative of the
584 The reasonability or otherwise of management action was considered in Greater Southern Area Health Service v Walsh [2010] NSWWCCPD 98. 585 J Eickhoff-Shemek, D Herbert, and D Connaughton, ‘Risk Management for Health/Fitness Professionals: Legal Issues and Strategies’ (Baltimore, Maryland: Lippincott Williams & Wilkins, 2009), 383- 384. 586 Edwards v National Coal Board [1949] 1 KB 704, 712 (Asquith LJ). 164
authority to work out the best and most efficient method for reducing the impact of any particular acquisition on any particular person, to as low as reasonably practicable (ALARP).
This operation requires an exercise in due diligence, and not a simple calculation that offsets likelihood and consequence in order to calculate acceptable or tolerable target levels of risk. In terms of the foreseeable risk of causing actual harm to individuals, there is no ‘tolerable’ or ‘acceptable’ level. An attempt to minimise harm is shown in the approach of the Californian Department of Transport. Relocation in the case of a compulsory acquisition there must be to a home, which is:
(1) decent, safe, and sanitary [in terms of the local equivalent of the Building Code of Australia] (2) functionally equivalent to the displaced dwelling. (3) adequate in size to accommodate the [displaced] family ... [and on typically-sized land] (4) in an area not subject to unreasonable adverse environmental conditions. (5) in a location generally not less desirable than the location of [the] displacement dwelling with respect to public utilities and commercial and public facilities, and reasonably accessible to the place of-employment … 587
Part 3 of Chapter Two, and Chapter Six of this study have outlined the nature of the hazards created by compulsory acquisition. It is not sufficient to say that, in the worst cases, they can be met by a payment of solatium. A reasonable person in the position of a municipal authority or a developer would attempt to avoid statistically possible, but low frequency events if it were known that each such event was attended by high severity of consequences, such as the risk that a displaced family would only be able to afford to stay in an existing area if they accepted a smaller dwelling, or an elderly person was not compensated for the cost of refitting an apartment so that it was functionally equivalent to the one which had been acquired in terms of disability features such as handrails next to toilets and showers.
This strikes me as being an unusual state of affairs. When compulsory acquisition powers are exercised in the USA, part of the acquisition process is the relocation of people thereby
587 California Department of Transportation, Your Rights and Benefits as a Displacee Under the Uniform Relocation Assistance Program (Residential) (CalTrans, 2014).
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dispossessed. This relocation exercise requires far more than the introduction to a case manager, and it means more than a one hour meeting with such a person. Typically:
[O]bjectives for residential displacement are to make displaces ‘whole’ economically, assist relocation to comparable housing, and minimize personal problems in adjusting to relocation. All who work in relocation understand that displacement is stressful and can be highly disruptive to affected families, even with benefits and services of the relocation program.588
This means firstly that there is an assessment of “minor improvements for items that will not be replaced” such as fencing, sprinkler systems, landscaping, storage shed, patio, deck, walkways, steps, disability ramps and septic systems, and that these are to be added to the market value. In Utah, for example, an allowance may be made for minor improvements up to US$25,000.589 Valuation is subject to independent review,590 and if different valuers submit different opinions, a review process is then enlivened.
Valuations are to be conducted properly and must be in the context of good faith negotiations;591 displaced persons are to be given at least 90 days’ notice, and sufficient time is to be offered to allow for an owner to take independent advice. Full compensation is to be paid before the taking of possession.592 Meetings are to be conducted in a way that makes the owner feel comfortable, even down to what the agent wears:
The agent should inquire before the meeting who will be present. The owner may benefit by the presence of a trusted friend, advisor, or relative … The agent should dress to the customary business style for the area and the location of the meeting. A suit and tie would be appropriate if [the] meeting is in a law office. Less formal attire may be more appropriate for conducting business in many areas in Utah. The agent should use common sense to dress appropriately for each situation.
All people displaced as a result of advance acquisition are eligible for relocation advisory service and relocation payments, and generally an agent is assigned to provide relocation services when the acquisition is approved.593 Residents might not be required to vacate until they are offered the amount that will enable them to purchase comparable housing,594 and
588 Utah Department of Transport, ‘Right of Way Manual’ (Government of the State of Utah, 2011) 154. 589 Ibid, 57. 590 Ibid, 73. 591 Ibid, 101. 592 Ibid, 90. 593 Ibid, 121. 594 Ibid, 136. 166
the guidelines specifically require that housing is to be within their financial means. If a person, due to age or infirmity occurring after entering into a mortgage on the property to be resumed, cannot obtain further finance, the State is required to provide either last resort housing or last resort finance.595 Attention is required to be given to persons with special needs including the elderly, disabled, and low-income individuals.
Agents are required to have experience in counselling and languages,596 and to provide transportation to view potential replacement housing.597 They are required personally to interview each household, as to household composition, dwelling characteristics, gross family income, employment location, mortgage, utilities, desires and intentions for replacement housing, and concerns relating to age or disability or both. On the basis of the interview, agents are required to prepare a summary of the characteristics and needs of individuals and families to be displaced based of the standard of comparable replacement housing, and this compilation is subject to the oversight of a senior government official. If there is insufficient, currently available, comparable replacement housing within the same area, an estimate is prepared as to the possible available property that would potentially meet the needs of the people or families to be relocated in other localities.
This estimate must be sufficient to give a person to be relocated some idea of the type of neighbourhood, proximity of public transport, and commercial shopping areas and distance to any pertinent social institutions such as church and community facilities which might await them in potential new homes.598 Providing such a list of estimates alerts the authority to whether or not there is sufficient housing within a reasonable distance to relocate everybody who is to be dispossessed.599
If, as it appears from the answers to questionnaires detailed in Chapter Six, the process of acquisition in general leads to anxiety, and if, as it appears from the legal theory outlined in Chapter Five that the causing of such anxiety, at least when it reaches a certain threshold, is possibly actionable, albeit difficult, in tort. Mitigation of possible damage in terms of, at the very least, the law of negligence, is required by Queensland authorities.
595 Ibid, 162 596 Ibid, 169. 597 Ibid, 170. 598 Ibid, 172-3 599 Ibid, 174. 167
Negligence law, as part of the law of torts, focuses on a ‘calculus of negligence’. In Woods v MultiSport Holdings Pty Ltd,600 Hayne J commented that what a reasonable person would do in response to a risk requires examination of facts of the particular case. As Hyun comments,
[E]xcept in popular mythology there is no such thing as ‘the people’. There are individuals, classes, groups, communities, and popular organisations, each of which may have different and competing interests ... Local residents ... have a diverse income spectrum … differentiation and stratification among residents would give rise to different attitudes towards neighbourhood changes, and have differing impacts upon the patterns of housing consumption …”601
Generally, one looks to the ‘target audience’ and calculates, with respect to each foreseeable member of that group, the magnitude of the risk of injury, the probability of its occurrence, and the expense, difficulty and inconvenience of alleviating action. In cases of compulsory acquisition, it is also reasonable to consider that low frequency, high severity events still have a probability of occurring, even if they are not more likely to occur than not. “A risk of injury which is quite unlikely to occur … may nevertheless be plainly foreseeable”.602 In such a case, one takes steps to avoid foreseeable injuries.
7.5 Contribution to knowledge and statement of originality
This thesis aims to make an original contribution to the public debate in Queensland regarding how persons affected by compulsory acquisition orders ought to be compensated for their losses. It will demonstrate that the current legislative framework is based on a very restrictive concept of compensation, which has been interpreted incrementally far more broadly when applied to other areas of law.
This study will be situated in a ‘law in context’ analysis603 of the changing nature of infrastructure provision in Queensland and, in particular, the fact that business cases in
600 (2002) 186 CLR 145, [138]. 601 Hyun Bang Shin, Transforming Urban Neighbourhoods: Limits of Developer-led Partnership and Benefit- sharing in Residential Redevelopment, with reference to Seoul and Beijing (PhD Thesis, London School of Economics and Political Science, 2006), 312. 602 Wyong Shire Council v Shirt (1980) 146 CLR 40, 47, (Mason J). 603 Caroline Hunter, ‘Integrating Socio-Legal Studies into the Law Curriculum’ (Palgrave McMillan, 2012). 168
support of various proposed pieces of infrastructure are often either deeply flawed, or indicate only marginal public benefit relative to the amount to be invested.604
As part of this demonstration, the project will show that earlier interpretations of the State laws relating to compulsory acquisitions to the contrary may well have been correct in their time, but are otiose now, because of the development of private-public partnerships, and the growth of multinational infrastructure companies.605
This project also makes an original contribution in so far as it attempts to bridge the gap, outlined in the literature review, between legal discussions as they relate to compulsory acquisition on the one hand, and the known science of place attachment on the other. It attempts to locate a solution within the existing legal framework for non-economic loss which might be suffered by displaced landowners as a result of the interruption of the attachment to place. The fact that this proposition has not been tackled in Australia before is all the more curious because of the current focus on indigenous land rights, an expression which refers to the communal rights of indigenous peoples in relation to the traditional lands or waters606 that link the group with the land.607 Whilst it is accepted that indigenous land right recognition is a critical issue, it is argued that non-indigeous persons can also have a significant attachment to their land, and this should be taken into account in CA laws.
604 See, for example, David Uren, ‘Malcolm Turnbull’s Rail Decision Gets Lost inside a Pork Barrel’, The Australian, 4 May 2017. 605 Dennis A Rondinelli, ‘Partnering for Development: Government-Private Sector Cooperation in Service Provision’
Chapter 8. Recommendations
In short, I recommend a focus on Queensland adopting an approach which, as with the program in place in the US State of Utah, emphasises the importance of robust resettlement over a mere focus on compensation. Such a focus would appreciate the unique vulnerability of older, or disabled, or low-income or similarly disadvantaged homeowners to loss of networks, social support, livelihoods, and increased health risks. Payment of Solatium is not a ‘one size fits all’ model in this instance and might not be the most efficient means to avoid, minimise and mitigate these risks.
The US has codified this system, to some extent, and it covers reasonable expenses related to a move including transportation, temporary storage, insurance while property is in storage or transit, the packing and unpacking of personal items and the disconnecting and reconnecting of household appliances.608
As Miceli and Segerson609 note, in the case of the compulsory acquisition of property for public purposes, the government imposes a cost on the landowner in order to provide a social benefit. The action is justified on efficiency grounds only if the aggregate benefit conferred exceeds the cost. This is not to say that private development ought to be made more efficient by reducing the payment to be made to an affected landowner as part of a compulsory process. This principle reflects legal developments in the USA: in 2004, the Michigan Supreme Court ultimately unanimously overruled its decision in Poletown610 in County of Wayne v Hathcock.611 There, the Court conceded that Poletown had erroneously ignored the distinction between public ownership and some amorphous public benefit. The point is brought home in Justice O'Connor's dissent in Kelo: if a government can take homes for the purpose of promoting economic development, which in a Queensland context means by private developers, then no one's property is safe.612
This is particularly the case where some of the infrastructure proposed is of limited public benefit, but obviously profitable for the promoters. Transurban are able to make a profit from
608 For details of the operation of the Uniform Resettlement Act, see eg California Department of Transportation, Your Rights and Benefits as a Displacee Under the Uniform Relocation Assistance Program (Residential) (CalTrans, 2014). 609 Thomas J Miceli and Kathleen Segerson, The Economics of Eminent Domain: Private Property, Public Use, and Just Compensation (Now Publishers Inc, 2007), 3. 610 Poletown Neighborhood Council v City of Detroit, 304 N.W.2d 455, 410 Mich. 616 (1981). 611 County of Wayne v Hathcock, 684 N.W.2d 765 (Mich. 2004). 612 545 U.S. 469 (2005). 170
the operation of CLEM7 because they bought it from the original developers at about 20% of its original cost;613 the injury to the feelings of those dispossessed by such a series of events is that which Alias and Daud suggest ought to be met by the developers under the heading of:
[O]ther consequential losses [including…] intangible loss, something that cannot be replaced … [including] recompense for the individual value which people commonly ascribe to heritable property in excess of its market value … [including an amount which] reflects loss of tie with the area, friendships made ... loss of relationship to the land, the dignity and identity that it provides ... and so on — items which are difficult to value ...614
8.1 Cost control — some recommendations
One way to lower the cost — including claims in respect of these consequential losses — is to reduce intangible or non-economic losses. This concept is not new: Cernea discussed it some 20 years ago with respect to Third World development, in the situation where were persons displaced for irrigation and hydro-electric projects. He paid particular attention to project aims of increasing the incomes of relocated people. He notes that dams built to service hydro-electric projects in Mexico were stocked with fish, and the fishing rights allocated to relocated villagers to improve their incomes. Chinese and Filipino dam-builders had to deposit a levy for each kilowatt of electricity generated towards specified community activities. 615
Indeed, even the London based International Council on Mining and Metals is able to opine:
Resettlement planning should start early. Companies should invest enough human or financial resources to ensure impacts are assessed and mitigated, and that benefits are shared in a sustainable way.616
613 Matt O’Sullivan, ‘Turning $3b into $618m: Brisbane’s Failed Clem7 Tunnel Sold Off’, Sydney Morning Herald, 27 September 2013
It does not appear that there have been any similar exercises in resettlement planning in Australia, nor any community dividend program.
There is, however, evidence of activity by developers where it will assist the achievement of their business aims — in this case, apparently, of selling real estate. Delfin Lend Lease might ordinarily be thought of as a property developer but, in its development south west of Brisbane at Springfield Lakes, it plans to increase the size of a community which in mid- 2007 had approximately 6,000 inhabitants, to some 30,000 by completion in 2020. When studied as part of the wider ‘Building Sustainable Social Capital in New Communities’ project, an exercise funded by the Australian Research Council, researchers discovered Springfield Lakes Leisure Group, a group founded for senior residents as an idea of, and initially facilitated by, Delfin Lend Lease’s community development staff. It aimed to counter the risk associated with the severing of proximal social relations, namely the changing of residence, at a time of life which contributes to the risk of social isolation. Whilst the researchers looked primarily at older residents, the concept of the Leisure Group was to provide a degree of social certainty in conditions where the support of family and friends was limited because of, amongst other factors, distance.617 In other words, paying for a displaced owner to be introduced to a new community and its activities might avoid much more expensive costs such as higher rates of solatium.
Because the constructing authority is better placed to envisage the possible consequences of physical displacement having vast experience in relocation cases, it is best positioned to envisage the steps that should be taken to ameliorate the time, trouble and inconvenience of resettlement. A well-planned and implemented resettlement process which is tailored to the individual being resettled, looking for an example at specific needs of access to employment, childcare, education for children, and community involvement, as well as just housing, may well reduce the quantum of solatium.
The use by Delfin Lend Lease of community development staff raises the question as to why infrastructure developers who acquire people’s homes in the process of that development, regardless of the process used, cannot similarly employ staff to ease the transition process for dispossessed landowners. For example, if commercial services such as emove.com.au can arrange disconnection and reconnection of gas, power, water, phone internet and cable TV, there is no reason why a developer cannot contract these services;
617 Peter Walters and Helen Bartlett, ‘Growing Old in a New Estate: Establishing New Social Networks in Retirement’ (2009) 29 Ageing & Society 217, 219. 172
by buying in bulk, the developer can probably obtain the services cheaper, or employ someone to provide them. Similarly, there ought to be no need for householders to obtain removalist quotations if the developer is able to arrange, and pay for, packing, storage and removals directly.
Community development workers are trained to be able to introduce newcomers to organisations such as family and community centres, children’s and parenting groups, sporting, recreation and hobby groups, men’s sheds, babysitting clubs and young mothers’ groups, religious groups, organisations such as Lions Clubs and other social clubs. Lists of these organisations by suburb are not readily available to the general public — which is why, for example, in NSW, community groups can get grants to compile them.618 A small donation from a developer, which might pay for the compilation of information for, say, the 50 householders to be dispossessed by the current (2018) round of compulsory acquisitions for the Gold Coast Light Rail project, could actually save a lot of social dislocation. As described by…:
[W]hen moving to a new community and losing many of their past community connections [people] are motivated to reach out and get involved in things they would not normally have got involved with. The extent of the impact of community development activities is much greater for people who have recently moved into the community than for people who have been in the community a long time ... it is very important to have strategies to make connections with people moving into the community; strategies will be more effective in bringing about change at this time than later on.619
The implementation of a community-based program might ensure that the price paid to all sellers would not exceed the value of the project to the buyer. From the perspective of a co- operative bargaining game, this would go some way to ensuring that all mutually beneficial transactions are eventually completed. Compulsory acquisition will therefore not create such public aggravation as to destroy the public credit of the developer and will reduce private aggravation to a point at which it is manageable.
618
For example, if, as happened at the time of the commencement of Melbourne’s eastern freeway programme, many of the persons being resettled are members of a particular ethnic group (and in the late 1970s, Melbourne’s inner North was a predominantly Greek area),620 legitimate householders might be resettled in a completely different suburb, but in a way that protects a group or community’s social and cultural identity and cohesion. In the case of the Greek residents displaced from what is now the Melbourne municipality of Yarra, a frequent destination was the suburb of Oakleigh, 17 km south of the freeway’s entrance, now considered by many as Melbourne’s new Greek centre.621 One of the first things the new residents did was build a church and a cultural centre. It is therefore recommended that consideration be given to ensuring that the displaced people have access to community centres and institutions, and that effort be put into introducing them to persons involved in these institutions, to reduce the risk that social inadequacy becomes an entrenched form of social exclusion.
If one has lived in an area for a long time, one might not be especially accomplished at meeting new people. Persons with disabilities, including older persons with disabilities, are, as the results in Chapter Six show, particularly adversely affected by compulsory acquisition in unique ways due to the loss of support systems and health care services. It is predictable that such persons, without assistance from social workers or similar persons employed by a development authority, are likely to face more isolation and neglect than would younger persons subject to the same acquisition process, and this must also be taken into account.
The process may also involve negotiating the availability of language assistance in key systems in the areas in which displaced homeowners are to be resettled, arranging access to ethnic peer support, and assistance in the rebuilding of social networks, where the relocation of members of networks in older neighbourhoods mean that their old social networks no longer exist.
One way to save costs is to defer the repayment of debt, and another is to convert debt into equity. Although some of the sums of money which are discussed in Chapter Six and in this Chapter — for example, reimbursement for ‘break’ fees charged by gyms, internet providers
620 Marissa Calligeros, ‘The Faces of Melbourne: Which Migrants Went to Which Suburbs’, The Age (Melbourne), 8 May 2015
and so on, or reimbursement for the costs of children needing different school uniforms if they have to change schools — are, as I have argued, sums in respect of immediate out of pocket expenses occasioned by the disruption of compulsory acquisition, the majority of the sums that I recommend be paid to dispossessed landowners would be, by definition, compensation for non-financial losses. Many persons would no doubt like to receive this as a lump sum, but there is no reason why solatium cannot be payable by instalments, as the cash flow of a project allows. For example, the Gold Coast Light Rail will produce revenue once it is completed, and not beforehand. It will produce revenue over a number of years. The Corporations Act 2001 and its subordinate legislation allow for the creation of fixed rate interest-bearing debt obligations by corporations, which would be funded out of the revenue of any infrastructure project to be carried out by a private developer. These securities are, at the option of the holder, convertible into shares in the issuer (for example, Transurban) to which preferential rights attach.622 These securities might provide an income over a period of years, can be sold on the open market, can be converted into shares, or can even be allocated to a superannuation fund in order to attract a tax concession.
It is possible to offset infrastructure costs against a betterment tax or rent from 3rd party concessions. Increasing payments, or increasing the costs of services, to those dispossessed by infrastructure developments, comes at a price. It does not necessarily need to be vested only upon the infrastructure developers, although, it might be a matter of public demand that they should be. One might hypothesise about the impact of the Gold Coast Light Rail line on housing in the immediate area. Debrezion, Pels and Rietveld have demonstrated that, for their Scandinavian survey area, the price gain between a house within a 250-metre radius of a railway station or light rail/tram stop zone and other houses is about 4.2% for the average residence, and about 16.4% for the average commercial property. For every 250 metres a residence is located further away from such a transport interchange, its price drops 2.3%. Whilst it might be objected that, in outer suburbs, people do not catch public transport, the whole idea of providing light rail on the gold Coast is that people would catch if it existed.
Train stations, and even tram stops, are also places where rent from concessions can provide income for the project developer. In Melbourne, many private concession-holders contribute rent which helps defray the refurbishment costs of many public buildings,
622 ASIC Corporations (Offers Of Convertibles) Instrument 2016/83. 175
including courthouses and train stations; the café at the Collingwood Neighbourhood Justice Centre623 is even community-operated, providing five jobs.
The Gold Coast Light Rail Stage 2 network has only recently been completed, and therefore the effect on property prices cannot yet be adequately measured. Chan et al624 note the amount which has been raised in respect of infrastructure charges by way of levies on private developers in Victoria and NSW.
I can see no reason why windfall increases in the value of properties in the vicinity of new public transport infrastructure ought not to be taxed in order to defray the additional cost of adequately compensating those who are dispossessed, at least upon the sale of a property or its disposal under a will. Road Infrastructure, on the other hand, might not increase the value of affected land, and adjoining residents might therefore not enjoy any windfall gain worthy of being taxed.
8.2 A personal thought
Mackay,625 in his masterful discussion of the current state of Australian society, points at the huge erosion of trust held by members of the public in most Australian institutions, including banks, insurance companies, energy companies, Telco’s and other large corporations, as well as Parliament and churches, because of perceptions of bad behaviour. In the case of banks and churches, he notes that these perceptions have been fortified by the evidence given before Royal Commissions; he might have added that with respect to most of the other large corporations in which Australians have lost confidence, there has been evidence before Parliamentary Committees, and there have been convictions in courts, which indicate that corporate behaviour has descended to depths not previously seen, at least in public. The avaricious nature of the acquisitions both in R & R Fazzolari Pty Ltd v Parramatta City Council626 and Kelo v City of New London,627 both cases involving developers which sought to take over private property by compulsory means and as a monopoly backed by the power of the state, is likely, if repeated, to reinforce the erosion of public trust in government, and to add to the perception that big corporations can order governments around, as indeed
623
appears to be a common media portrayal of Australia’s largest toll-road operator, Transurban.628
The fact that the media portrays Transurban as it does is no indication of the truth of the portrayal. It does, however, influence public opinion.629
Mackay argues that there are strong links between the breakdown of trust, a general feeling of anxiety amongst many Australians, and increasing lack of social cohesion as Australia moves from being a society to merely an economy. He calls for an improvement in public behaviour from corporations as well as government, so as to rebuild confidence in our institutions, and a feeling of trust in one another which might flow from that.
To the extent that it is regarded as important, public confidence in the process of compulsory acquisition cannot be rebuilt until that process is perceived to be fair, and this might be a very different proposition from it actually being fair. The reality, as both the interviews with professionals and the interviews with dispossessed householders show, is that the current system is so far removed from what the Principle of Equivalence actually requires to be in effect, that some over-correction may be necessary in order to restore public confidence.
8.3 Concluding remarks
This implementation of these recommendations might go some way to achieving the result suggested by argument in Nelungaloo Pty Ltd v Commonwealth,630 and in Wurridjal v Commonwealth,631 the latter of which suggested that ‘just terms’ extended to non-financial recompense, although the High Court’s judgement in the latter did not comprehensively discuss that issue. Kirby did discuss the provision of some failures of non-financial compensation, in which a need to provide them was established at trial.632 It is therefore reasonable to apply these same rules by anaology to non-indigeous persons, as this thesis has demonstrated significant degrees of attachment to their homes. That is to say, there is
628 See for example Royce Millar and Ben Schneiders, ‘Transurban: The Making of a Monster’, The Age (Melbourne), 14 May 2016 629 Norman Fairclough, Analysing Discourse: Textual Analysis for Social Research (Routledge, 2003); Norman Fairclough, Critical Discourse Analysis (Longman, 2nd ed, 2010) 630 (1948) 75 CLR 495. 631 (2009) 237 CLR 309. 632 (2009) 237 CLR 309, 425-426. 177
scope for consideration of non-financial compensation in ‘just terms’ cases affecting all Australians.
Nelungaloo Pty Ltd v Commonwealth633 was a case of wartime reconstruction. There, Latham CJ opined that ‘just terms’ obligation did not “compel the community to submit to the exaction of the uttermost farthing”. In that 1948 case, there was clear community benefit. In 2018, the beneficiaries of compulsory acquisition might be only indirectly the community. As was suggested in Chapter One, the beneficiaries are often privately held monopolies. There is no evidence that suggests that subsequent tolls, fares or rents on concessions will be any lower if the cost of the input of purchasing necessary land is reduced. Indeed, Transurban’s Victorian tolls are fixed at a minimum 4.5% annual increase and will always increase at above the rate of inflation.634 That is, they are not, unlike most prices, subject to market forces.
Nor is the discussion a matter of the community paying “the uttermost farthing”. It is a discussion of whether a private company may be unjustly enriched, a proposition rejected by the High Court in R & R Fazzolari Pty Ltd v Parramatta City Council635 and the subject of a scathing dissent in the US case of Kelo v City of New London.636 It is a matter of whether, in the pursuit of profit, a private developer may impose, as part of a conscious business case, mental harm on persons in a way that, for an example, would, if done negligently, enliven liability under the Civil Liability Act 2003.
Chapter Five demonstrated that the compulsory transfer of wealth from a vulnerable individual, such as a homeowner subject to a compulsory acquisition order, to a large corporation in a special relationship with the Crown, is unjust enrichment. If one accepts, without further argument, the linguistic proposition that the words ‘just’ and ‘unjust’ are antonyms, then any acquisition that provides unjust enrichment to an ultimate acquirer cannot be on ‘just terms’, and, as Sturgeon and Pitt-Walker637 have argued, this is necessarily against the Federal Constitution and Constitution of the State of Queensland. Whether the Commonwealth can provide funding to a state project that involves the acquisition of property on unjust terms is a question outside the scope of this research,
633 (1948) 75 CLR 495. 634
although the decisions in Pape v Commissioner of Taxation638 and Williams v Commonwealth639 initially suggest that the Commonwealth cannot provide a grant for a matter which is outside the scope of its Constitutional power, and the acquisition of property other than on ‘just terms’ is one such matter. These are all matters suggested for further research.
638 (2009) 238 CLR 1. 639 (2012) 248 CLR 156. 179
Executive Summary
A significant volume of research exists to suggest the value of a home to an owner as a result of place attachment is greater than market value. For these owners, the loss experienced by being dispossessed is greater than what can be compensated in pecuniary terms. This research paper aims at adding to that volume of research.
In Australia, as in the USA, a man’s home may be his castle, but this does not stop the government from taking it.640 English legislation and US authority, as well as the legislation in the states of South Australia and Queensland, treat the “loss to the owner of non- transferable values deriving from his unique need for property or idiosyncratic attachment to it … as part of the burden of common citizenship.”641
Compulsory acquisition of land in Queensland is not carried out as an exercise in expropriation for the purpose of altering what is perceived to be the injustices wrought by past colonialism, as for example took place in Zimbabwe.642 In theory, it can only take place with the payment of appropriate compensation under the ‘Principle of Equivalence’. However, a recent compulsory purchase of an owner-occupied residence on Queensland’s Gold Coast by the Queensland Government to make way for the second stage of the Gold Coast Light Rail system made headlines,643 and many compulsory acquisition programs have sparked civil unease.
Key argument
The way the Principle of Equivalence has been interpreted in Queensland for approximately the last hundred years is flawed, being based on only half, instead of the whole, of an important early Court judgement.644
Two key categories of impacts exist as a result of the compulsory acquisition of a home:
1 tangible, legal and economic impacts; and
2 intangible, social and/or psychological impacts.
640 Thomas Pope, ‘Social Contract Theory in American Jurisprudence: Too Much Liberty and Too Much Authority’ (Routledge, 2013), 31. 641 Olsen v US 292 U.S. 246 (1934). 642 Brian Raftopoulos & Tyrone (eds), ‘Savage Zimbabwe: Injustice & Political Reconciliation’ (Weaver Press, 2005). 643 Paul Weston, ‘Parkwood Couple… to Lose Dream Home Due to Blasting for Tramworks’, Gold Coast Bulletin, 27 February 2016. 644 Livingstone v Rawyards Coal Co, (1880) 5 App Cas 25 (Blackburn LJ). 180
There is a significant imbalance in how these two categories are accommodated for in current compensation policy and legislature. Queensland’s current legislation ensures that the Principle of Equivalence is addressed through solely economic means catering primarily for the legal and economic compensatory elements, essentially leaving the psychological and social elements uncompensated.
The increasing use of compulsory acquisition powers by governments in Australia is evident in NSW, where the state government was able to legislate645 its way around a High Court decision646 which determined that a municipality had no statutory power to compulsorily acquire land for the purposes of 're-sale', or in circumstances where the land was required for a project where the municipality was in a joint venture with a developer, such that part of the consideration passing to the developer for it carrying out development was the transfer of the land to be seized from a member of the public.
In Queensland, Prentice v Brisbane City Council,647 the Supreme Court refused to allow a municipality to compulsorily acquire land from a private owner merely for the purpose of facilitating a proposed development mooted to the council by a private developer. However, as in NSW, there are a disturbing number of press reports648 suggesting that legislative change in Queensland is increasingly making this possible. This seems to trample on the common law rights of residence of those states:
The principle of legality means that common law rights will not be taken by a court to have been displaced by legislation save where the intention to do so is ‘expressed with irresistible clearness’.649
The literature review conducted as part of this research project documents many of the known consequences of not upholding adequate protection of property rights. Property owners losing these rights as a consequence of compulsory acquisition are neither adequately protected from harms which contravene other areas of Queensland law, nor are they compensated in accordance with the Principle of Equivalence as it was originally
645 Land Acquisition (Just Terms Compensation) Act 1991. 646 R & R Fazzolari Pty Ltd v Parramatta City Council (2009) 237 CLR 603. 647 [1966] Qd R 394, 406. 648 See eg Charlie McKillop, Mark Jeffery and Amy McCosker, ‘Political Strain Pushes Federal MP to Breaking Point as Community Anger Grows Over Compulsory Defence Acquisitions’, ABC Rural, 23 January 2017; Jim Gainsford, ‘WestConnex Letters Anger St Peters Residents’, Sydney Morning Herald, 25 January 2015; Clay Lucas, ‘Residents Angry They Will Lose Their Homes to East West Link Despite Government’s Own Advice’, The Age (Melbourne), 2 July 2014. 649 [2016] HCA 8, [41]. 181
pronounced, as opposed to the limited version currently provided by legislation in Queensland. The calculation of adequate compensation is problematic. The value of the emotional loss might well exceed the monetary compensation.650
Research question
The central research question of this project is as follows:
• Does the relevant Queensland compulsory acquisition legislation misconstrue the concept of the Principle of Equivalence and strike the wrong balance between market demand for land for private infrastructure (even if the public derive some benefit from it) and the rights of property owners?
Summary of discussion around research question
Compensation is payable at common law for losses properly anticipating resumption of possession of the land.651 The general rule, which forms the starting point for the measure of damages, comes from the statement of Blackburn in Livingstone v Rawyards Coal Co:652
That sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation.
The current thinking in Queensland is that this relates to monetary losses only and is reflected in current legislation which values the compensation for loss of real estate according to market value principles. That position, however, does not reflect the positions in common law or equity:
In order to enable the arbitrator to come to a just and true construction it is his duty I think to avail himself of all information at hand at the time of making his award which may be laid before him.653
This includes damages for non-economic loss.
650 Pilot interview 12. 651 Director of Buildings and Lands v Shun Fung Ironworks Ltd [1995] 2 AC 111 (PC). 652 (1880) 5 App Cas 25, 39. 653 Bwllfa and Merthyr Dare Steam Collieries (1891) Ltd v Pontypridd Waterworks Co [1903] AC 426. 182
Current thinking also ignores the ‘hidden’ second half of the dictum of Blackburn in Livingstone V Rawyards Coal Co:654 the notion of what might be ‘equivalent’ to something else:
must be qualified by a great many things which may arise — such, for instance, as by the consideration whether the damage has been maliciously done.
That is, the mental element of the acquiring body, or one of its partners, might affect the quantum of damage, and so might “a great many [other] things.”
To put it another way, the general principle governing the assessment of compensation is that the plaintiff should receive the monetary sum which, so far as money can, represents fair and adequate compensation for the loss or injury caused by the defendant.655 In terms of the compulsory acquisition of property, this takes on a human rights element, and requires that the acquisition be moral, rather than simply the imposition of the will of the State without justification.656
Analogies can be made with the pain and suffering element of personal injuries cases, generally an element hard to value, and often “largely a matter of impression … on the material available”.657 Two other doctrines, that of unjust enrichment,658 and that preventing the reckless infliction of pure mental harm, particularly on elderly and other vulnerable residents, affect the calculation of whether a proposed amount of compensation is either reasonable or just. As to unjust enrichment, the project profits made by developers are often not transparently declared, so are hard to quarantine and quantify.
Literature Review: Chapter Two
The key point of the literature review is that, despite ample evidence that persons become attached to a place, and despite the fact that compulsory acquisition, which interferes with attachment to place has been called ‘extreme law’ by the High Court,659 no research to date
654 (1880) 5 App Cas 25. 655 Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64, 116 (Deane J). 656 Deryck Beyleveld, and Roger Brownsword, ‘Normative Positivism: The Mirage of the Middle-Way’ (1989) 9(4) Oxford Journal of Legal Studies 463, 511. 657 Griffiths & Beerens Pty Ltd v Duggan [2008] VSC 201, [200] (Pagone J). 658 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387. 659 Durham Holdings Pty Ltd v the State of New South Wales (2001) 205 CLR 399. 183
deals with any legal basis for opposition to the limited form of compensation for compulsory acquisition in Queensland today.
Methodology: Chapter Three
This chapter discusses the combination of the doctrinal method common to legal research with two series of interviews, one of professionals and one of persons affected by compulsory acquisitions. It justifies the choices of methodologies and explains their limitations.
History of Solatium: Chapter Four
The concept of solatium appears to have arisen in Sands Devan,660 where the Court opined that “[t]he relation of money compensation to the grief and suffering of a father is necessarily vague and even arbitrary, and the very attempt to measure such suffering by money is pitifully discordant.” In Australia, in Carson v John Fairfax & Sons Limited,661 solatium was described as a solace for grief, annoyance and internal hurt, rather than a monetary recompense for harm measurable in money; and in Glasgow Corporation v Kelly,662 the Court allowed "a claim for lacerated feelings and for the loss of natural support which the deceased afforded or might in future have afforded”. Both cases find modern expression in Australia in McManus (Executrix) v Babcock Energy Ltd663 where the Court was able to make a measurement of solatium, couched as a payment in respect of pain and suffering, for the premature and painful death of a victim of asbestos-related cancer suffered whilst in a workplace.
In terms of the acquisition of land, it was abolished after the British Scott Commission664 and its two reports of 1920 in the UK, and this step was followed in Queensland. Solatium still exists in personal injuries matters, however: s.61 Civil Liability Act 2003 (Qld) which allows a court to award general damages in personal injuries cases on the basis of an injury scale which runs from 0 to 100.
660 1945 Scots LT 288. 661 (1992) 178 CLR 44, 69-70 (Brennan, J). 662 [1951] 1 TLR 345, 347 (Lord Normand). 663 1999 SC 569. 664 The ‘Second Report to the Ministry of Reconstruction of the Committee dealing with the Law and Practice Relating to the Acquisition and Valuation Of Land for Public Purposes’, (L Scott, Chairman), Cd 9229 (HMSO, 1918), 23, [61]. 184
Legal Theory
The central principle governing the award of damages at common law is that they are compensatory.665 Compensation under the Acquisition of Land Act 1967 (Qld) is required to be both fair and adequate,666 with respect to all matters which might fairly and reasonably be considered either arising naturally, or which might reasonably be supposed to have been something that might have been reasonably contemplated as the probable result of the action or omission which gave rise to a legal claim.667 It explores the idea that “fair and adequate” means one thing if the compulsorarily-acquired land is intended for a project which benefits land-owners in the area, including the subject land-owner, in an immediate and material sense, such as bringing a road or rail link as a state-owned asset to a rural property;668 and possibly also, when the subject land-owner is an absentee and the land is part of a slum, targeted for redevelopment for the provision of affordable housing by a state- owned enterprise;669 but something different when driven by private infrastructure providers for private gain.
The term, ‘Principle of Equivalence’, has attained the status of mantra in determinations of land value, and was first enunciated by Blackburn in Livingstone v Rawyards Coal Co,670 a case that does not deal with land acquisition. The second half of the paragraph of Blackburn’s judgement, the half usually not quoted in land valuation cases, starts with the words:
That [i.e. the first half of the paragraph] must be qualified by a great many things which may arise — such, for instance, as by the consideration whether the damage has been maliciously done …
This therefore admits the possibility that there might be factors other than those which are measurable, which might be included in the quantification of the Principle of Equivalence in respect of any particular piece of land, such as unjust enrichment.
665 Johnson v Perez (1988) 166 CLR 351, 355. 666 Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64, 116 (Deane J). 667 Hadley v Baxendale [1854] EWHC Exch J70 (1854) 9 Exch 341, 156 ER 145, p. 151; Golden Strait Corporation v Nippon Yusen Kubishika Kaisha [2007] UKHL 12, [29]; Commonwealth of Australia v Amann Aviation Pty Ltd (1991) 174 CLR 65, 80 (Mason and Dawson JJ); 98 (Brennan J) Wenham v Ella (1972) 127 CLR 454, 471. 668 As will be discussed in Part 2 of this Chapter, in reference to Queensland’s road-building efforts. 669 As will be discussed in Part 2 of this Chapter, in reference to the building of “Homes Fit for Heroes” in the aftermath of the First World War in England. 670 (1880) 5 App Cas 25. 185
The law allows the distinction between pecuniary and non-pecuniary loss in a personal injuries case,671 for consequential loss where recoverable loss transcends normal loss, for example in contract cases,672and also in respect of matters such as damage to one’s reputation, disappointment and distress,673 and wrongful dismissal from employment.
Without an express term in its two constitutions, the State of Queensland has never been proven to be constitutionally bound to acquire property on ‘just terms’ as enshrined in Australia’s Commonwealth Constitution. Sturgeon and Pitt-Walker674 have argued that the Queensland Constitution Acts require the Parliament of Queensland to legislate for the ‘good government’ of Queensland, a restriction which at common law incorporates, they argue, the freedoms set out in the Magna Carta, and those rights won during the First English Civil War by individuals affected by the activities of private providers of drainage infrastructure.675 Thus compulsory acquisition must arguably be on ‘just terms’ even without an explicit constitutional requirement.
Brown argues, contrary to Sturgeon and Pitt-Walker’s position, that: “It is possible for an Australian State to pass legislation acquiring land on just or unjust terms.”676 However that argument might be settled, commitment to ‘just terms’ has featured in Queensland’s laws since the 1860s, although Queensland law does not currently contain the concept of solatium. At the time of the formation of the colony of Queensland, solatium at the rate of 50% was allowed, in England, to compensate for the ‘indignity of compulsion’.
Under Australian law provisions, property owners dispossessed of their property are entitled to claim compensation under a number of headings:
• Market Value
• Special Value
• Severance
• Injurious Affection
671 See eg Florida Hotels Pty Ltd v Mayo (1965) 113 CLR 588. 672 Hadley v Baxendale (1854) 9 Exch 341. 673 Baltic Shipping Co v Dillon (1993) 176 CLR 344. 674 John Sturgeon and Stephen Pitt-Walker, ‘Compulsory Acquisition, is it Constitutional in Queensland?’, forthcoming paper, Alternative Law Journal (2018). 675 Christopher Hill, The World Turned Upside Down: Radical Ideas During the English Revolution (Viking, 1972). 676 David Brown, Land Acquisition (Butterworths, 1972). 186
• Disturbance
• Reinstatement
• In jurisdictions other than Queensland677 and South Australia, Solatium.
In England at the time the Scott Committee recommended the abolition of solatium, the provision of housing for the working-classes appears to have been a sufficient incentive and benefit for those dispossessed of their land to be satisfied with compensation which did not include solatium. The Scott Committee also appears to have been responding to the alarming post-war national debt. With a debt of £9.3 billions,678 it is possible that the British government simply could not afford to pay solatium.
None of these historical conditions exist 100 years later in Queensland, and in particular, despite the shortage of affordable housing,679 the main building of public infrastructure appears to be that of road and rail. During the period of the intensive development of Queensland, up until the conclusion of the “Beef Roads” projects in the mid 1970s, it is arguable that a lack of payment of solatium was justified by the fact that the market value of the land compulsorily acquired, plus the value of the improvement of any land not so acquired, sufficiently compensated a land owner for the ‘inequity’ of being the subject of a compulsory purchase.
Pastoralists and farmers were keen to have road and rail development as it improved the viability of their farms. Further, all of this development was public. The output of government- owned enterprises in Australia (including both Commonwealth and individual state enterprises) in 1989-90 accounted for 7% of GDP, 9% of total employment, and 14% of gross fixed capital expenditure.680
677 Acquisition of Land Act 1967 (Qld). 678
It was not until well into the 21st century that Queensland state infrastructure assets were on the way to being privatised. QR National freight and the state’s major tollway network, Queensland Motorways, were sold to a private consortium.
A particularly popular way of packaging infrastructure projects in Australia has been the Build, Own, Operate and Transfer (BOOT) system, as used in the CityLink road project in Melbourne. Under this system, private developers construct a project in return for the user charges, such as toll or fare revenue. In theory, the government pays nothing during the period of private ownership. Then, after a period sufficient to cover the cost of construction, the user charges are abolished and the asset is handed over to the Crown, free. However, the system is immensely profitable for the developers. For example, the construction cost of Melbourne’s CityLink project has been estimated at between $1.5 billion and $2 billion, but the present value of the tolls to be paid to the construction consortium is around $4 billion.681 The proceeds from privatisation in Australia had totalled in excess of $70 billion682 by the turn of the last century.
Accordingly, the major benefit of each of these projects goes not to the state, and not to the public, but to the individual developer. the reasons existing in 1920 for the abolition of the payment of solatium are therefore no longer valid. Payments of solatium ought to be guided by the following principles relating to compensation from analogous areas of law: personal injuries, contract, defamation and unfair dismissal cases.
In neither tort nor contract actions may a defendant retain benefit from his or her breach,683 because of considerations of justice and equity.684 In personal injuries actions, where careless conduct of a particular kind by the defendant might reasonably foreseeably result in damage of some kind to the plaintiff’s person or property, and in fact the kind of damage suffered by the plaintiff was foreseeable as a possible outcome of the kind of carelessness charged against the defendant, damages will ordinarily flow.685 The court will compensate for both the plaintiff's actual physical sensations of pain and the mental distress flowing from the realisation of the extent and permanency of the injury which they have suffered. Other
681
anxieties and frustrations consequent on the injury, subsequent medical treatment, and ‘litigation anxiety’ are also included.686
In contract law, losses over and above those directly relating to a breach of contract, or which are immediately related to the cost of putting right a breach of contract by a defendant, are recoverable under the heading of ‘consequential loss.’ These are losses that, although not naturally arising as a result of a breach, would have been in the contemplation of the parties, as to being a foreseeable consequence of a breach at the time of the contract.687 Since Environmental Systems v Peerless Holdings Pty Ltd,688 ‘consequential loss’ has no definition broader than its ordinary meaning. It therefore encompasses matters which are subject of some calculation, and provable only on the balance of probabilities, for example, lost profits.
The law of defamation deals only in intangible loss. Where a person's integrity has been attacked, or their reputation damaged, the Principle of Equivalence requires that there be compensation for the tangible as well as the intangible harm caused by the defendant. However, a person does not own his or her reputation. There is no proprietary interest in it, because it cannot be bought or sold. Accordingly, there cannot be tangible loss. Yet a libel action is fundamentally an action to vindicate a reputation where the victim has been falsely defamed, and the damages awarded have to be regarded as the demonstrative mark of that vindication, even though the appropriate amount to be fixed for an award for non-pecuniary harm is inherently uncertain.689
In cases of unfair dismissal, federal provisions allow individual employees the right to initiate action in respect of loss of employment. This right is not based on property rights: Australian law does not recognise property in one’s job, because, like a reputation, a job cannot be sold. Just as exterior factors affect a reputation, exterior factors, such as technological change and poor market conditions can affect the job. The Fair Work System allows for unfair dismissal claims by workers who have been dismissed, at the initiative of their employer.690 They must have completed the minimum employment period,691 and the
686 Wickham v Treloar (1960) 61 SR (NSW) 7; 77 WN (NSW) 350 (FC); Marziale v Hathazi (1975) 13 SASR 150; 63 ALJR 51; Armstrong v Rudd (1978) 46 FLR 42 (FCAFC) (gross scarring causing suffering). 687 Hadley v Baxendale (1854) 156 ER 145. 688 [2008] VSCA 26. 689 Associated Newspapers Ltd v Dingle 1964] AC 371, 396 (Lord Radcliffe). 690 Fair Work Act 2009 ss 385(a), 386. 691 FW Act s 382(a). 189
dismissal must have been ‘harsh, unjust or unreasonable’.692 Where reinstatement is impracticable, compensation is payable. The starting point in the calculation of compensation is the wages and benefits that the worker ought to have received had there been no termination,693 but compensation is available in addition to ‘lost’ wages and benefits, to cover shock, humiliation and distress if the termination of a worker’s employment is carried out in a particularly denigrating way,694 subject to a total cap of either the high income threshold of $71,000,695 or 26 weeks of wages and benefits, whichever is the lower.696
Further, there are equitable considerations in relation to compulsory acquisition. In cases in which a private developer urges a resume authority to acquire land, essentially so that the developer might make a profit, it might be said that the conduct of the developer is so harsh that it ‘goes against good conscience’.697 Equity is a separate stream of law, and solatium may be seen as a form of additional equitable compensation that is payable in cases where a resuming authority has taken advantage of “an inequality so strong, gross and manifest that it must be impossible to state it to a man of common sense without producing an exclamation of the inequality of it”.698 Decided Australian and English cases699 support the proposition that, in instances in which the acquiring authority is passing on or on-selling the land to a private developer, a breach of fiduciary duty will arise.
692 FW Act s 385(b). 693 Brackenridge v Toyota Motor Corp (1996) 67 IR 162. 694 This was the case, for example, in Burazin v Blacktown City Guardian Pty Ltd, (1996) 142 ALR 144. 695
Results of interviews
In short, the professional persons interviewed displayed different approaches as to the discretion allowed in assessment of claims for disturbance. Some allowed a departure from the black letter law wording of the legislation; for example, permitting an allowance for packing the crockery or clothing of frail and elderly people as part of the ‘packing and moving’ component of the expenses to be reimbursed. Conversely, other officers, justified by the belief that they are bound by the strict interpretation of the legislation, were not prepared to include such discretionary matters in the allowances they approved.
Dispossessed owners were sometimes better off because they had moved in with adult children and been able to contribute to those children, or because they had been forced to downsize and had received tax free capital gains, but generally they were displeased with the disruption of having to move at a time not of their own choosing and further, complained that not all their costs had been met. None of the owners interviewed felt as at home in their new communities as they had in their old ones. More than half the interviewees from each centre did not know where the nearest community centre, library, or cinema was in their new neighbourhood.
This is not good for social cohesion. It is also not good in terms of studies which show that resettled or dispossessed household members show heightened internalisation problems with particularly high anxiety and depression scores; amongst younger parents, this particularly leads to enhanced risk of family discord and divorce.700
The lack of empathy revealed by the professional interviewees, in the light of the real pain caused as shown by the interviews with dispossessed owners, shows that indeed the system of compulsory acquisitions in Queensland is “no more than a series of power-plays in which legal officials demand, ‘obey or pay’, with no more attempt at moral legitimacy than a highwayman.”701
700 Jessica M Fear et al, ‘Parental Depression and Inter-Parental Conflict: Children and Adolescents’ Self- Blame and Coping Responses’ (2009) 23(5) Journal of Family Psychology 762. 701 Deryck Beyleveld and Roger Brownsword, ‘Normative Positivism: The Mirage of the Middle-Way’ (1989) 9(4) Oxford Journal of Legal Studies 463, 511. 191
Limitations and scope for further research
This research project is necessarily limited by the ethical considerations that surround interviewing people who have been the subjects of compulsory acquisition actions. There are also limitations to the evidence, in that the question of whether any particular person would have been satisfied with any particular amount of money is purely hypothetical.
A further limitation is that the cost-benefit analysis of the private infrastructure providers, which might indicate the pool of profit from which ‘just and equitable’ compensation might be drawn for dispossessed landholders, is not in the public domain. In addition, given that many multinational Public-Private Partnership consortia corporate participants are domiciled in offshore tax havens, it is impossible for private research to ascertain how much profit was earned from any particular project, or any particular acquisition forming part of any particular project.
The project touches on the concept of a ‘betterment tax’ levied on lands that the government has made better as a direct result of its actions in Chapter Six, but I have been unable to identify any modelling that would demonstrate how such a tax (quaintly referred to as a ‘special rate’ levied by municipalities many years ago) might be collected in Queensland, nor how much revenue it might generate. It may be that such a tax would need to be designed carefully so that it did not infringe the Commonwealth Constitution in matters in which federal funding was involved; this is a matter outside the scope of this paper. Accordingly, I have been unable to develop the concept of a betterment tax outside the suggestion that it is a possible topic for future research.
It could be that further research would examine the necessity for adequate disclosure, by multinational companies working in Australia, of profits earned from projects conducted in this country. This could be made a condition of tendering for infrastructure projects.
In terms of the theoretical argument, I have adopted the methodology which allows for a textual analysis. Legal arguments in common law countries must follow the words of Lord Blackburn in River Wear Commissioners v Adamson:702
We are to take the whole of the statute together and construe it, giving the words their ordinary signification, unless when so applied they produce inconsistency so great as to convince the court otherwise … and justify the court putting on some
702 (1876-77) LR 2 App Cas 743. 192
other signification, which though less proper, in one the courts think the words will bear.
In particular, however, I am also bound by Australian jurisprudence. The debate in this area internationally is shaped by Kelo, a case decided in an American court in accordance with the provisions of the US Constitution.
Australian law is not informed by that constitution, but rather by its own, and the constitution of each of the several states. Australians are guided, but not governed, by legal decisions in other common law jurisdictions, but recognise the limited persuasiveness of UK decisions, given that the UK is, although it is soon not to be, a member of the European Union and therefore governed by European decisions. Australians recognise the limited persuasiveness of Canadian and New Zealand decisions, limited because each of those two restrictions is framed by their respective bills of rights, and in Canada by its constitution. We recognise the limited persuasiveness of decisions of Malaysia, where Article 13(1) of the Federal Constitution does not restrict legislative powers but declares unconstitutional or prohibits executive acts of unlawful deprivation of property.703
It follows that this thesis is limited, in the development of its argument, by the extent to which the decision of Ng Chin Siu & Sons Rubber Estate Sdn. Bhd.v Pentadbir Tanah Hilir Perak and Anor704 would be regarded as good law, or even persuasive authority, in Australia. In that case, having regard to the Malaysian constitution, which of course is not the law of Australia, the Court of Appeal held that any compulsory acquisition of land undertaken in violation of the provisions of the Malaysian Land Acquisition Act 1960 constituted a manifest breach of Article 13(1) of the Malaysian Constitution.
It is trite that an Act of Parliament which derogates from a constitutional provision guaranteeing rights to property must be strictly complied with; it certainly cannot be partially complied with or applied willy nilly to deprive a person of his property. In the judgment of Lord Hailsham … in London Aberdeen ... was cited with approval ... “When Parliament lays down a statutory requirement for the exercise of legal authority it expects its authority to be obeyed down to the minutest detail. But what the courts have to decide in a particular case is the legal consequence of non-compliance on the rights of the subject viewed in the light
703 Ah Thian v Government of Malaysia [1976] 2 Malayan Law Journal 112; [1976] 1 LNS 3. 704 Civil Appeal No A-01-794-2010. 193
of a concrete state of facts and a continuing chain of events … At one end of this spectrum there may be cases in which a fundamental obligation may have been so outrageously and flagrantly ignored or defied that the subject may safely ignore what has been done and treat it as having no legal consequences upon himself...” Lai Tai … was a case dealing with the … and Article 13 of the Constitution … Adams, J had this to say...“Article 13... demands that no person shall be deprived of his property except in accordance with the law. It is essential that the intention as well as the provisions of the enactment be observed.” (emphasis added)
To the extent that this decision can be relied on in Australia, my original argument is that the expression ‘the intentions of the enactment’ includes compensation for all the losses that were, at the time the enactment was passed, available in common law and equity for aggrieved persons in the state of Queensland. Brennan observed in Project Blue Sky v ABC,705 that a “purported exercise of a power in breach of the provision which governs the manner of its exercise is invalid, since there is no power to support it”.
I am further bound by the idea of a social contract, which imposes moral obligations. Western liberal legal theorists such as Beyleveld and Brownsword, Hart and Oppenheim706, each suggest that if officials — and that means not only lawyers and judges, but valuers and public servants — do not treat rules as imposing moral obligations, then “law … is no more than a series of power-plays in which legal officials demand, ‘obey or pay’, with no more attempt at moral legitimacy than a highwayman.”707
In personal terms — and the dispossession of people from their land is indeed a personal matter — the narratives and the stories dispossessed homeowners tell about themselves are linked to their well-being,708 but these people are not yet able under any theory of law or equity to gain compensation for their inability to turn disruptive episodes, such as transitions or other negative events, into redemptive ones. There will be people whose life stories are a litany of woe and grief, and a claim for compensation cannot be couched in the telling and re-telling of one’s life story, or events within it.
705 (1998) 194 CLR 355, 373 [34]. 706 Ruth Zimmerling, Influence and Power: Variations on a Messy Theme (Springer, 2006) 171. 707 Deryck Beyleveld and Roger Brownsword, ‘Normative Positivism: The Mirage of the Middle-Way’ (1989) 9(4) Oxford Journal of Legal Studies 463, 511. 708 Dan P McAdams, ‘The Psychology of Life Stories’ (2001) 5(2) Review of General Psychology 100; Dan P McAdams, J J Bauer and A R Sakaeda, ‘Interpreting the Good Life: Growth Memories in the Lives of Mature, Happy People’ (2005) 88(1) Journal of Personality and Social Psychology 203. 194
A valuation is not an exercise in the formation of a person’s narrative identity, and, much as the person concerned might think differently, a compulsory acquisition for the purpose of, say, building a railway line, is not designed as a psychological assault on any particular individual’s sense of self. This leads to a limitation in the form of questions that can be asked, and to the necessity for rigidly controlling the responses in interviews lest the relevance of the interview be lost.
Finally, I knew more at the end of the process of writing this thesis than at its beginning and found the need to adopt a flexible approach to both the theory and the practical research. In the course of my research, I changed my view as to the adequacy of compensation paid to affected landowners, given the non-economic losses caused to them and the profit made by private non government interests as a result of the CA action.
195
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(2008) 43(2) Quality and Quantity 265 Lewicka, M, ‘What Makes Neighbourhood Difference from Home and City? Effects of Place Scale on Place Attachment’ (2010) 30(1) Journal of Environmental Psychology 35 Livingston, Mark, Nick Bailey, and Ade Kearns, ‘Neighbourhood Attachment in Deprived Areas: Evidence from the North of England’ (2010) 25 (4) Journal of Housing and the Built Environment 409 Locke, John, Two Treatises on Government (Butler, Reid, Sharpe and Bumpus, 1821) Makkreel, Rudolf A ‘Interpretation, Judgment, and Critique’, in Niall Keane and Chris Lawn (eds), The Blackwell Companion to Hermeneutics (Wiley-Blackwell, 2016) McAdams, Dan P, ‘The Psychology of Life Stories’ (2001) 5(2) Review of General Psychology 100 McAdams, Dan P, J J Bauer and A.R. Sakaeda, ‘Interpreting the Good Life: Growth memories in the Lives of Mature, Happy People’ (2005) 88(1) Journal of Personality and Social Psychology 203 Mcdonagh, John and Mike Todd, ‘Solatium Payments for Public Works – An International Comparison’ (2011) Pacific Rim Property Research Journal 12 McKillop, Charlie, Mark Jeffery and Amy McCosker, ‘Political Strain Pushes Federal MP to Breaking Point as Community Anger Grows over Compulsory Defence Acquisitions,’ ABC Rural, 23 January 2017 Meagher, Dan, ‘Compulsory Acquisition of Native Title Land for Private Use by Third Parties’ (2008)19 Property Law Review 179 Meagher, R, J Heydon and M Leeming, Meagher, Gummow and Lehane’s ‘Equity: Doctrines and Remedies’ (Butterworths Lexis Nexis, 4th ed, 2002) Miceli, Thomas J and Kathleen Segerson, The Economics of Eminent Domain: Private Property, Public Use, and Just Compensation (Now Publishers Inc, 2007) Miller, Mervyn, ‘Commemorating and Celebrating Raymond Unwin (1863–1940)‘ (2015) 30(1) Planning Perspectives, 129 Morgan, David, ‘Practical Strategies for Combining Qualitative and Quantitative Methods: Applications to Health Research’ (1998) 8(3) Qualitative Health Research 362 Mulhall, Anne, ‘In the Field: Notes on Observation in Qualitative Research’ (2003) 41(3) Journal of Advanced Nursing 306 Munckon, P, ‘More Sell-Offs to Come’ (2000) 60 Shares Magazine 612 New South Wales, ‘Guidelines – Determination of Compensation for Disadvantage Resulting from Relocation’ (Central Policy Office, 2017) Nicholls, Sean, ‘Compulsory Acquisitions: Owners Get More Time, Money but Fairness Questions Remain’ Sydney Morning Herald (Sydney), 18 October 2016 O'Neill, Phillip, ‘Stumbling into the Future: Living with the Legacy of the Great Infrastructure Sell- Off’, The Conversation, 6 April 2017
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International Journal of Social Research Methodology 375 Page, William, Granville Proby and S Inskip Ladds (eds), A History of the County of Huntingdon: Volume 3 (Victoria County History, London, 1936) Parker, Gavin and Joe Doak, Key Concepts in Planning (Sage Publishing, 2012) Peatman, Maureen, ‘High Court Reinforces Private Land Owners’ Rights’ (2009) 15 Local Government Law Journal 80 Perry, Chad, ‘A Structured Approach for Presenting Theses’ (1998) 6(1) Australasian Marketing Journal 63 Piketty, Thomas, Capital in the Twenty-First Century, audio form (Brilliance Audio, 2015) Pirinoli, Christine, ‘Erasing Palestine to Build Israel: Landscape Transformation and the Rooting of National Identities' (2005) 173 Études Rurales 67 Pocock, Melissa, ‘Orgies of Seizure and Violence: Compulsory Acquisition and Private Sector Redevelopment – Lessons for Australia’ (2015) 20 Local Government Law Journal 27 Pocock, Melissa, ‘Compulsory Acquisition, Public Benefits and Large-Scale Private Sector Redevelopments: Can Australia Learn from the United Kingdom?’ (2014) 19 Local Government Law Journal 129 Posner, R A, ‘The Ethical and Political Basis of the Efficiency Norm in Common Law Adjudication’ (1980) 8 Hofstra Law Review 487 Quinn, C E and A C Halfacre, ‘Place Matters: An Investigation of Farmers' Attachment to Their Land’ (2014) 20(2) Human Ecology Review, 117 Ratnapala, Suri, Jurisprudence (Cambridge University Press, 2nd ed, 2013) Raviv, Amiram et al ‘Moving as a Stressful Life Event for Adolescents’ (1990) 18 Journal of Community Psychology, 130 Relph, Edward, Place and Placelessness (Pion, 1976) Rogers, William Elford, ‘Interpreting Interpretation: Textual Hermeneutics as an Ascetic Discipline’ (Penn State Press, 1994) 162 Rondinelli, Dennis A, ‘Partnering for Development: Government-Private Sector Cooperation in Service Provision’
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Spooner, Lysander, The Law of Intellectual Property; Or an Essay on the Right of Authors and Inventors to a Perpetual Property in their Ideas (Bela Marsh, 1855) Stanley, Owen, ‘The Potential Use of Tax Incentives for Indigenous Businesses on Indigenous Land’ (Working Paper No 17/2002, Centre for Aboriginal Economic Policy Research, October 2002) Strauss, A and Corbin, J, ‘Grounded Theory Methodology: An Overview’, in N Denzin & Y Lincoln (eds), Handbook of Qualitative Research (1st ed,1994) 273. Stuckey, Michael, ‘Feudalism and Australian Land Law: “A Shadowy, Ghostlike Survival”?’ (1994) 113(1) University of Tasmania Law Review 102 Sturgeon, John and Stephen Pitt-Walker, ‘Compulsory Acquisition, Is it Constitutional in Queensland’, forthcoming paper Alternative Law Journal (2018) Susskind, Richard The Future of Law (1996) Journal of Information Law and Technology [3] Swain, Warren, ‘Unjust Enrichment and the Role of Legal History in England and Australia’ (2013) 36(3) University of New South Wales Law Journal 1030 Tarn, John N, Five Per Cent Philanthropy: An Account of Housing in Urban Areas between 1840 and 1914 (Cambridge University Press, 1973) Taylor, Richard, ‘Human Property: Threat or Saviour?’ (2002) 9 Murdoch University Electronic Journal of Law 4 Thompson, Carl, ‘If You Could Just Provide Me with a Sample: Examining Sampling in Qualitative and Quantitative Research Papers’ (1999) 2(3) Evidence-Based Nursing 68 Tugendhat, Michael, Liberty Intact: Human Rights in English Law (OUP, 2016) Uren, David, ‘Malcolm Turnbull’s Rail Decision Gets Lost inside a Pork Barrel’, The Australian, 4 May 2017 Wade, Catherine Jill, Citizens in Action: Local Activism and National Housing Programs (PhD Thesis, Simon Fraser University, British Columbia, Canada, 1991) Wardill, Steven, ‘Queensland Privatisation Plan: $12b Infrastructure Boost the Sweetener’, The Courier-Mail (Brisbane), 6 October 2014 Williams, Allison and Peter Kitchen, ‘Sense of Place and Health in Hamilton, Ontario: A Case Study’ (2012) 108(2) Social Indicators Research 257 Yates, Judith and V Milligan, ‘Housing Affordability: A 21st Century Problem’ (AHURI Final Report No 105, Australian Housing and Urban Research Institute Limited, 2007) Zimmerling, Ruth, Influence and Power: Variations on a Messy Theme (Springer, 2006)
B. LEGISLATION
Acquisition of Land Act 1967 (Qld). S 20(1)(b) Civil Law (Wrongs) Act 2002 (ACT) Civil Liability Act 2003 (Qld) s 3 Constitution of Australia, S. 51 (xxxi) Defamation Act 2005 (NSW) Defamation Act 2005 (Qld) Defamation Act 2005 (Qld), s34
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Defamation Act 2005 (SA) Defamation Act 2005 (Tas) Defamation Act 2005 (Vic) Defamation Act 2005 (WA) Defamation Act Act 2006 (NT) Expropriation Act, RSA 2000, c E-13 (Alberta) Expropriation Act, RSBC 1996, c 125 (British Columbia) Expropriation Act, RSNL 1990, Ch E 19, s.27 (Newfoundland) Fair Work Act 2009 (Cth) ss 351, 382(a) 385(a), 385(b), 386, 392 Land Acquisition (Just Terms Compensation) Act 1991 (NSW), s60(3) Land Acquisition (Just Terms Compensation) Amendment Bill 2016 Land Acquisition (Just Terms Compensation) Amendment Act 2016 (NSW) Land Acquisition Act 1993 (Tas) s30 Land Acquisition and Compensation Act 1986 (Vic) Land Administration Act 1997 (WA) s 241 Lands Acquisition Act 1978 (NT) Schedule 2, Rule 9 sub rule 2 Native Title Act 1993, S223(1)(a), s223(1)(b) Public Works Act 1902 (WA) s 63(c)(i)
C. CASES
Ah Thian v Government of Malaysia [1976] 2 Malayan Law Journal 112 Allianz v Waterbrook [2009] NSWCA 224 Alstom Ltd v Yokogawa Australia Pty Ltd (No 7) [2012] SASC 49 AMP Capital Investors Ltd v Transport Development Corporation [2008] NSWCA 325 Andrews v John Fairfax & Sons Ltd, [1980] 2 NSWLR 225 Armstrong v Rudd (1978) 46 FLR 42 Associated Newspapers Ltd v Dingle 1964] AC 371 Attorney-General (UK) v Blake [2001] 1 AC 268 Baltic Shipping Co v Dillon (1993) 176 CLR 344 Baltic Shipping Co v Dillon (1993) 176 CLR 344 Barrow v Bolt [2015] VSCA 107 Barton v Armstrong [1976] AC 104 (PC). Bergman v Holroyd Municipal Council (1988) 66 LGRA 68 Birtchnell v Equity Trustees Executors and Agency Co Ltd (1929) 42 CLR 384 Blomley v Ryan (1956) 99 CLR 362 Boustead Trading (1985) Sdn Bhd Arab-Malaysian Merchant Bank Bhd(1995) 3 MLJ 331 FC Bowen Investments Pty Ltd v Tabcorp Holdings Ltd [2008] FCAFC 38 Brackenridge v Toyota Motor Corp (1996) 67 IR 162
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Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144 Bwllfa and Merthyr Dare Steam Collieries (1891) Ltd v Pontypridd Waterworks Co [1903] AC 426 Byers v Dorotea Pty Ltd (1986) 69 ALR 715 Caltex Oil (Australia) Pty Ltd v The Dredge 'Willemstad' (1976) 136 CLR 529. Carson v John Fairfax & Sons Limited (1992) 178 CLR 44 Carson v John Fairfax and Sons Ltd (1993) 178 CLR 44 Caruana v Port Macquarie-Hastings Council [2007] NSWLEC 109 (6 March 2007) Cerutti v Crestside Pty Ltd [2014] QCA 33 Chan v Zacharia (1984) 154 CLR 178 Chappell v Mirror Newspapers Ltd (1984) Aus Torts Reports 80-691 Clough v Leary (1904) 2 CLR 139 Coe v Gordon [1983] 1 NSWLR 419 Commercial Bank v Amadio (1983) 151 CLR 447 Commonwealth of Australia v Amann Aviation Pty Ltd (1991) 174 CLR 65 Commonwealth of Australia v Verwayen (1990) 170 CLR 394 Cook v City of Stirling (1991) 4 WAR 469 Coyne v Citizen Finance Ltd (1990) 172 CLR 211 Croudace Construction Limited v Cawoods Concrete Products Limited [1978] 2 Lloyd’s Rep 55 D'Amico v Shire of Swan-Guildford [1969] WAR 183 Director of Buildings and Lands v Shun Fung Ironworks Ltd [1995] 2 AC 111 Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399 Edwards v National Coal Board [1949] 1 KB 704 El Ajou v Dollar Land Holdings PLC [1993] 3 All ER 717 Entick v Carrington [1765] EWHC KB J98 1066 Environmental Systems v Peerless Holdings Pty Ltd (2008) 227 FLR 1 Environmental Systems v Peerless Holdings Pty Ltd [2008] VSCA 26 European Bank Limited v Evans (2010) 240 CLR 432 FHR European Ventures LLP v Cedar Capital Partners [2014] UKSC 45 Florida Hotels Pty Ltd v Mayo (1965) 113 CLR 588 Glasgow Corporation v Kelly [1951] 1 TLR 345, 347 (Lord Normand) Glasgow Corporation v Kelly 1945 Scots LT 288 Golden Strait Corporation v Nippon Yusen Kubishika Kaisha [2007] UKHL 12 Goold v the Commonwealth (1993) 42 FCR 51 Grace Brothers v Commonwealth (1946) 72 CLR 269 Greater Southern Area Health Service v Walsh [2010] NSWWCCPD 98 Griffiths & Beerens Pty Ltd v Duggan [2008] VSC 201 Griffiths v Minister for Lands, Planning and Environment (2008) 82 ALJR 899 Gwynne v Heaton (1778) 28 ER 949 Hadley v Baxendale (1854) 156 ER 145 205
Halwood Corporation (in liq) v Roads Corporation [2008] VSC 28 (14 February 2008) Hodgkinson v Simms [1994] 3 SCR 377 Horn v Sunderland Corporation [1941] 2 KB 26 Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 I & L Securities v HTW Valuers (2002) ATPR 41-894 ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140 Insight Vacations Pty Ltd v Young (2010) 78 NSWLR 641 James v Swan Hill Sewerage Authority [1978] VR 519 Johnson v Perez (1988) 166 CLR 351 Johnston Fear v Commonwealth (1943) 67 CLR 314 Jones v Sutton (2004) 61 NSWLR 614. Karak Rubber Co Ltd v Burden (No. 2), [1972] 1 All ER 1210 Kelo v City of New London 545 U.S. 469 (2005) King v Minister for Planning and Housing [1993] 1 VR 159 LAC Minerals Ltd v International Corona Resources Ltd [1989] 2 SCR 574 Lee Transport Co Ltd v Watson (1940) 64 CLR 1 Leichhardt Council v Roads & Traffic Authority of NSW [2006] NSWCA 353 Liesbosch Dredger v SS Edison [1933] AC 449 Lifeplan Australia Friendly Society Ltd v Ancient Order of Foresters in Victoria Friendly Society Ltd [2017] FCAFC 74 (Allsop CJ, Middleton and Davies JJ, 12 May, 2017) Livingstone v Rawyards Coal Co (1880) 5 App Cas 25 Maguire v Makaronis: (1997) 188 CLR 449 Malec v Hutton (1990) 169 CLR 638 March v City of Frankston [1969] VR 350 Marshall v Director-General, Department of Transport (2001) 205 CLR 603 Marziale v Hathazi (1975) 13 SASR 150 McCormick v Grogan (1869) LR 4 HL 82 McManus (Executrix) v Babcock Energy Ltd 1999 SC 569 MGC Properties Pty Ltd v Tang [2009] QSC 322 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 Millar’s Machinery Co Limited v Way(1934) 40 Com Cas 204 Mills v BHP Coal Pty Ltd [2017] QSC 184 Minister Administering the Environmental and Planning Assessment Act 1979 v San Sebastian [1983] 2 NSWLR 268 Minister for Army v Parbury Henty (1945) 70 CLR 459 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 Mir Bros Unit Constructions Pty Ltd v Roads & Traffic Authority of New South Wales [2006] NSWCA 314 National Provincial Bank Ltd v Ainsworth [1965] AC 1175 206
Nelungaloo Pty Ltd v Commonwealth (1948) 75 CLR 495 New South Wales v Moss (2000) 54 NSWLR 536 Ng Chin Siu & Sons Rubber Estate Sdn. Bhd.v Pentadbir Tanah Hilir Perak and Anor (unreported Court of Appeal Judgment, Malaysia) Civil Appeal No A-01-794-2010
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191 LGERA 351 (20 August, 2012, Emerton, J) Skelton v Collins (1966) 115 CLR 94 Sorbello v South Western Sydney Local Health Network [2016] NSWSC 863 Sorbello v South Western Sydney Local Health Network [2016] NSWSC 863 South Australia v Slipper [2004] FCAFC 164 South Australia v Totani (2010) 242 CLR 1 Spencer v Commonwealth (1907) 5 CLR 418 Todorovic Waller (1981) 150 CLR 402 Trustees of the Indigenous Barristers' Trust v Commissioner of Taxation (2002) 127 FCR 63 Twinsectra v Yardley [2002] 2 AC 164 Uren v John Fairfax & Sons Ltd (1966) 117 CLR 118 Vanhorne’s Lessee v Dorrance, 2 US (2 Dall) 304 (1795) Victoria Laundry (Windsor) Ltd v Newman Industries Ltd [1949] All ER 997 Voinet v Barrett [1885] 55 LJQB 39 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 Wenham v Ella (1972) 127 CLR 454 Wickham v Treloar (1960) 61 SR (NSW) 7 Wily v St George Partnership Bank Ltd (1999) 84 FCR 423 Woods v MultiSport Holdings Pty Ltd (2002) 186 CLR 145 Wyong Shire Council v Shirt (1980) 146 CLR 40 Yanner v Eaton [1999] 201 CLR 351 Zoneff v Elcom Credit Union Ltd (1990) 94 ALR 445
D. TREATIES and other international material
Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN GAOR, 61st sess, 107th plen mtg, Agenda Item 68, UN Doc A/RES/61/295 (2 October 2007, adopted 13 September 2007) ‘Draft Aide Memoire on United Nations Declaration on the Rights of Indigenous Peoples’, African Group (9 November 2006) United Nations Economic and Social Council, ‘Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights’, UN Doc E/CN.4/1985/4, Annex (1985)
E. OTHER MATERIALS
208 recommendations/8804040 > The ‘First Report to the Ministry of Reconstruction of the Committee dealing with the Law and Practice Relating to the Acquisition and Valuation Of Land for Public Purposes’, (L Scott, Chairman), Cd 8558 (HMSO, 1918); The ‘Second Report to the Ministry of Reconstruction of the Committee dealing with the Law and Practice Relating to the Acquisition and Valuation Of Land for Public Purposes’, (L Scott, Chairman), Cd 9229 (HMSO, 1918). New South Wales, Parliamentary Debates, Land Acquisition (Just Terms Compensation) Amendment Bill 2016 (NSW), 20 October, 2016, (Duncan Gay). 209 Appendices Appendix A: Local News Coverage of Gold Coast Case 210 211 212 Appendix B: Dispossessed & Displaced Owner Questionnaire John Sturgeon – PhD Candidate Interview Anonymous Interviewee - Dispossessed & Displaced Homeowner Infrastructure Project October 2017 213 INTRODUCTION: Good morning/afternoon/evening, my name is John Sturgeon I am conducting a survey on behalf of the University of Queensland. The Business School is undertaking research into a project on the Attitudes of property owners who have had their homes Compulsorily Acquired by Government to make way for public infrastructure projects. The study will focus on Queenslanders’ attitudes associated with Compulsory Acquisition and associated compensation. We are wanting to speak with homeowners whom have been through the experience of a compulsory acquisition action. It has been established from public record that you have previously experienced a compulsory acquisition. Is this correct? Are you prepared to participate in the survey? Yes (Continue) No Thanks (Terminate) 1. Interviewee identification code 2. Suburb living in prior to the acquisition? 3. How long had you lived there? (years) 4. Do you mind telling me your age? 5. How many people lived in that house, 6. You and who else? 7. Did you live with anybody other than your immediate family? 8. Can you describe your house? 9. Did you build it yourself, or buy a used home? 10. Were there any special features of your home that you particularly liked? Any special spaces that you would not find in other homes, for example a sewing room, a music room or a woodworking shed? 11. If so, did you have them custom-built, or did they come with the house originally? 12. Did you receive compensation or help for the compulsory acquisition of your home from the following perspectives? If non-monetary forms, please tell me about it. 214 a. Social / Community? yes / no b. Legal or getting paperwork sorted – yes/ no, just the conveyancing, yes /no , other legal, yes / no 13. Psychological? yes / no 14. How much time did it take to find you somewhere else to live? 1-under a month, 2-1 month but under 3 months, 3-3 months but under 6 months, 4-over 6 months - *includes having to find temporary accommodation whilst looking for a house to buy 15. Were you offered any assistance in the process of moving house, looking for a house, looking for a school, looking for a job? Yes / No (if yes, what help) 16. Did you find another house in the same neighborhood? yes / no - If not, a. did you want to live in the same neighborhood? yes / no b. why couldn’t you find another house in the same neighborhood? 3 expense? Or some other reason? 17. Did you have to change kids schools as a result of the move? yes / no 18. Did you have to change jobs as a result of the move? yes / no 19. How strong was your personal feeling of belonging in your old neighborhood? (listed with Response Codes) Very weak 1 Weak 2 Average 3 Strong 4 Very strong 5 20. Did you have a sense of pride in your old neighborhood? (listed with Response Codes) Very weak 1 Weak 2 Average 3 Strong 4 Very strong 5 21. How strong is the community spirit, not just your personal feeling, but the way you perceive your neighbors getting on together, in your new neighborhood? (listed with Response Codes) Very weak 1 Weak 2 Average 3 Strong 4 Very strong 5 22. How strong is your personal feeling of belonging in your new neighborhood? (listed with Response Codes) Very weak 1 Weak 2 Average 3 Strong 4 Very strong 5 23. Do you have a sense of pride in your new neighborhood? (listed with Response Codes) Very weak 1 Weak 2 Average 3 Strong 4 Very strong 5 24. Had your parents lived in your old area? What about Your grandparents? Any other family? Anyone Else with whom you wanted to remain close, but cannot for any reason, including travelling time, travel costs or distance? 25. Did you take an interest in aspects of neighborhood life and changes in the neighborhood, in your old neighborhood? (listed with Response Codes) Not at all, 1 somewhat, 2 Rather a lot, 3. 26. If 2 or 3 to the above, how so? 215 27. Did you join in with social events taking place in your old neighborhood? (listed with Response Codes) Not at all, 1 somewhat, 2 Rather a lot, 3. 28. Do you take an interest in aspects of neighborhood life and changes in the neighborhood, in your new neighborhood? (listed with Response Codes) Not at all, 1 somewhat, 2 Rather a lot, 3. 29. take an interest in aspects of neighborhood life and changes in the neighborhood, in your new neighborhood? How so? 30. Do you join in with social events taking place in your new neighborhood? (listed with Response Codes) Not at all, 1 somewhat, 2 Rather a lot, 3. 31. Do you feel included in your new neighborhood? (listed with Response Codes) Not at all, 1 somewhat, 2 Rather a lot, 3 32. In the old neighborhood, how well did you know your neighbors? For example, Could you have asked one of your former neighbors for a lift to the supermarket if your car was being repaired? (listed with Response Codes) No 0 Yes 1 33. If you were away from home overnight, could you ask one of your former neighbors to look after your pets or water your plants? (listed with Response Codes) No 0 Yes 1 34. Other than your family, who did you trust in your old neighborhood? (listed with Response Codes) Nobody 1 Few people 2 Some people 3 Most people 4 Everybody 5 35. In the new neighborhood, how well do you know your neighbors? For example, could you ask one of your neighbors for a new lift to the supermarket if your car was being repaired? (listed with Response Codes) No 0 Yes 1 36. If you are going to be away from home overnight, can you ask one of your new neighbors to look after your pets or water your plants? (listed with Response Codes) No 0 Yes 1 37. Other than your family, who do you trust in your new neighborhood? (listed with Response Codes) Nobody 1 Few people 2 Some people 3 Most people 4 Everybody 5 38. How easy was your move? How long did it take, how much help did you have, and what there anything that you were not able to do yourself? 39. Would your task in moving have been made easier if you had been given assistance with household tasks such as packing? With job related assistance such as finding a new job, if you had to change jobs? With assistance in finding new schools for the children, If you have children? with arranging moving vans, doing the paperwork associated with the move, notifying banks, phone companies and so on of your new address? 40. I remind you that you do not have to answer any question which makes you 216 uncomfortable. Were you offered more money for the original house than you originally paid for it? 1 Yes 2 No 41. Had you paid off your house by the time of the acquisition? 1 Yes 2 No 42. Did you move to another home with the same people as in your original home? 1 Yes 2 No, moved in with adult children, 3, No, moved in with other relatives, 4, Other, please explain 43. Did the amount you received for your home by way of payment for the compulsory acquisition cover the cost of moving into your new home? If not, how much was the shortfall in terms of percentage? 44. Is there anything else you would like to share with me? End of Survey Questionnaire Thank You for your participation! 217 Appendix C: Industry Professional Questionnaire John Sturgeon – PhD Candidate Interview Anonymous Interviewee – Industry Professional Infrastructure Projects February 2018 218 Background to research: Governments, and more recently the private sector are investing significant resources into new infrastructure projects. The legislation utilized in Queensland, Australia to Compulsorily Acquire the real estate interests to construct these projects was established several decades ago in 1967 before this nature of infrastructure was contemplated. The concept compensation in Australia distilled from English roots and originally in the Magna Carta in 1215, arises in the Constitution, “The Parliament shall, subject to this Constitution, have power to make laws 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 laws.” and applied in the federal legislation, Lands Acquisition Act 1989. The concept that forms the foundation of compensation theory is known as the Principal of Equivalence, that is to fundamentally place a person in the same position after the loss as they were before, No better and No Worse off as a result of the compulsory acquisition action. The application of this principle has been established in law as: -“The principle of compensation will include in the price of the land, not only its market value, but also personal loss imposed on the owner by the forced sale, whether it be the cost of preparing the land for the best market then available, or incidental loss in connection with the business he has been carrying on, or the cost of reinstatement, because otherwise he will not be fully compensated. The statutory compensation cannot, and must not, exceed the owner’s total loss . . . [as this] will transgress the principle of equivalence which is at the root of statutory compensation, the principle that the owner shall be paid neither less nor more than his loss.” Scott, LJ in Horn v Sunderland Corporation [1941] 2 k.b. 26. The right to private property, and the importance of guaranteeing adequate compensation if government expropriates private property, has been recognised in a range of international instruments and conventions. There has been much publicity about Government’s powers of compulsory acquisition and how it threatens property owners rights. Judge Playger of the Federal Circuit Court in the United States stated, “A man’s home may be his castle, but it does not keep the Government from taking it.” (1991) Accordingly, how can this loss be compensated to meet the requirements of the Principle of Equivalence doctrine? 219 General 1. What is your role as a professional in relation Compulsory Acquisition / Eminent Domain / Compulsory Purchase (CA) process? 1. How many years have you worked in this capacity? 2. What country, state and jurisdiction do you practice? a. Australia – Queensland b. Australia – Other State c. United States d. United Kingdom 3. What type of projects have you worked on? Road, Rail? 4. How many CA actions that have you been involved with in your career? Principle of Equivalence & Compensation 5. Do you believe the Principle of Equivalence as stated in the preamble is a fair and equitable basis of just compensation? 6. Do you believe the Principle of Equivalence goals are achieved in the compulsory acquisition of owner occupied residential properties within your jurisdiction? 7. How are the goals of the Principe of Equivalence achieved in the compulsory acquisition of owner occupied residential properties achieved from the following perspectives?: a. Financial / Economic? Pecuniary Payments based upon market value? b. Social / Community? Non-Pecuniary c. Psychological? Pecuniary or Non-Pecuniary Please apply a % weighting to each category. 8. What if any is the limitation preventing the goals being achieved? 9. According to Maslow’s Hierarchy of Needs (see Figure.1), Humans most basic needs extend from a basis of Physiological needs through to Self – Actualization needs. Given this ideology and the inherent importance of Physiological, Safety & Security, Love & Belonging, Community, Connection & Self Esteem, how is the Principle of Equivalence applied (if at all) in your country to compensate dispossessed owners for their loss of these elements? 220 Figure 1. Maslow’s Hierarchy of Needs 10. What losses are you aware of that dispossessed home owners have suffered as a result of the compulsory acquisition action? 11. Do you believe the dispossessed homeowners were justly compensated for these losses? 12. Outline the heads of compensation available to a dispossessed owner subject to a CA within your jurisdiction. Catagorise them as either pecuniary or non-pecuniary measures. 13. Do you believe a premium above market value should be paid as part of compensation? a. No b. Yes – Fixed amount (if so, what amount?) c. Yes – 5% of property value d. Yes – 10% of property value e. Yes – 15% of property value f. Yes - Greater than 15% of property value Please provide reasoning behind this allocation 14. What more or less could / should be done to achieve the goals of the Principle of Equivalence? Please demonstrate and give some examples. Disposed Homeowner Attitudes to Compensation 15. In your experience please rate (as a percentage) the following general points of concern raised by disposed homeowners in CA cases you have been involved in: 221 a. Concern about loss of Property Rights b. Concerned about pecuniary Compensation adequacy c. Concerned about non–pecuniary Compensation adequacy d. Concern about displacement from home e. Concern about Family / Community / Neighborhood dislocation Please apply a % weighting to each category. 16. Do you believe homeowners attachment to their homes strengthens over time? 17. Do you believe homeowners that have little attachment to their homes (have not been in occupation for an extended period) are more likely to be satisfied with a pecuniary based compensation package? 18. At the conclusion of CA cases in your opinion are most dispossessed property owners attitudes (Reaction / Response) towards their compensation outcome: a. Positive b. Neutral c. Negative 19. Does compulsory acquisition legislation in your jurisdiction rely upon land being required for a public purpose? 20. Do you believe land compulsorily acquired for infrastructure projects that you are aware of satisfy the grounds for acquisition as a public purpose? 21. Should the power exist to compulsory acquire for non-public purposes? If so how does this alter in your view how should owners be compensated? End of Survey Questionnaire Thank You for your participation! 222 Appendix D: Paper Submitted for Publication – The Alternative Law Journal Compulsory Acquisition, is it Constitutional in Queensland? Abstract Queensland Law allows property to be compulsorily acquired and to be used by and/or delivered to corporate interests for the purpose of undertaking infrastructure development such as roads, airport or bridge building projects. These development projects then facilitate the generation of private profits.709 From time to time, it is argued that this is simply a mechanism for ensuring that socio- economic development proceeds without expense to the State. This may be the case, however, the argument to be put in this paper is that compulsory acquisition other than on just terms offends the Constitution of Queensland. In this paper, we take a doctrinal approach to the Constitution by first examining its words in context. We then seek a historical justification for the meaning the authors ascribe to those words. We conclude by expressing the view that the way in which compulsory acquisition is practiced in Queensland, with payments of arbitrarily declared market values but no additional compensation for lost time, effort or expenses in finding new places to live and re-establishing ties in a new community, would have offended the Magna Carta; would have offended the Petition of Right; and is now contrary to Queensland’s Constitution in the sense of impugning ‘good government’. The Provisions giving rise to the practice are therefore invalid. The words in context Queensland’s Parliament operates subject to the express limitation to act, and legislate, for the peace, order, and good government of the State.710 This limitation does not appear in s. 15(1) of the Constitution Act 1986 (NZ), which says that the Parliament of New Zealand continues to have full power to make laws. Nor did it appear in the Victorian Constitution of 1855. That Act provided that there would thereafter be “one Legislative Council and One Legislative Assembly... Her Majesty shall have Power, by and with the Advice and Consent of the said Council and Assembly, to make Laws in and for Victoria, in all Cases whatsoever”.711 709 As will be argued by co-author, John Sturgeon in his forthcoming Ph.D undertaken through the University of Queensland Business School. 710 Queensland Constitution Act 1867, s2, now reproduced in the consolidated Constitution of Queensland Act 2001. 711 Now reproduced in Constitution Act 1975 (Vic) s 16. 223 Interestingly, no individual has the legal capacity to do anything which is unlawful. He or she might have the physical capacity, but the entire concept of ultra vires authority stands for the proposition that some actions which exist as a fact are not legally authorised, and therefore are a legal nullity.712 It follows that Parliament may attempt to enact legislation, or indeed may pass legislation, which is ultra vires. It too has no effect, in the same way that a document signed by a person who does not have legal capacity to sign it has no effect. That does not change the historical fact that the legislation has been passed, any more than a declaration that someone at a special disadvantage, who does not understand a document, is not bound by it713 changes the historical fact that it was signed in the first place. We return to this argument later in this article. Do citizens of Queensland have any guarantee that their State government – born of the common law and English Constitutional system - will continue to guarantee them the freedoms from tyranny, hard won through civil war, the signing of Magna Carta, the acceptance of The Petition of Right, and the development of the Common Law? The most obvious place to look is in decided cases. In South Australia v Totani,714 a case concerning an Act of the South Australian Parliament, French, CJ referred to the principle of legality and the requirement it imposed for clear statutory language before any legislation will be construed as overriding common law rights and freedoms: Whether… State legislative power is constrained by rights deeply rooted in the democratic system of government and the common law was a question referred to but not explored in Union Steamship Co of Australia Pty Ltd v King. Whatever the answer to the unexplored question, it is self-evidently beyond the power of the courts to maintain unimpaired common law freedoms which … a State Parliament, acting within its constitutional powers, has, by clear statutory language, abrogated, restricted, or qualified.715 So, within its constitutional powers, the State of Queensland can wind back those freedoms. But what are the constitutional limits on its power so to do? Are there any guidelines? Fortunately, we are not limited to Hayne J' s extrajudicial observation, that departure from the rule of law 'cannot be always excluded but must in every case be justified.716 We know that: In a representative democracy governed by the rule of law...the principle of legality ...also applies the constructional assumption that Parliament will use clear language if it intends to overthrow fundamental principles, infringe rights, or depart from the general system of law.717 712 See for example Uniform Civil Procedure Rules 1999 (Qld) r 371(1); Concise Australian Legal Dictionary (LexisNexis, Butterworths, 5th ed, 2015) 439. 713 Commercial Bank of Australia v Amadio (1983) 151 CLR 447; National Australia Bank Limited v Garcia (1998) 194 CLR 395. 714 (2010) 242 CLR 1. 715 Ibid 29 [31] (citations omitted). 716 Justice Kenneth Hayne, ‘Dispute Resolution and The Rule of Law’ (Speech delivered at the Sino- Australian Seminar, Beijing, 20-22 November 2002). 717 Australian Education Union v General Manager, Fair Work Australia (2012) 246 CLR 117, 134-135 [30] (French CJ, Crennan and Kiefel JJ). 224 Crennan J wrote extrajudicially: The resolution of any tension between civil order and good government on the one hand, and individual freedoms on the other, for which Magna Carta has become a symbol, depends for us on the methods of determining the constitutionality of legislation, both Commonwealth and State, and the limits on government action and power.718 Clearly, Her Honour was not, then, only writing about the Commonwealth Constitution. She continued: These methods are to be found in, or derived from, the Constitution. They arise from the system of government established by the Constitution and the rule of law, being an aspect of good government assumed when the Constitution was framed.719 That is, the common law “rule of law” provides a limit on the power of a State government to interfere with fundamental rights and liberties. Kirby J would add a measure of international law to those limits. He opined: One highly influential international statement on the understanding of universal and fundamental rights is the Universal Declaration of Human Rights...It is not part of Australia's domestic law, still less of its Constitution. Nevertheless, it may in this country... influence legal development and constitutional interpretation... where its terms do not conflict with... a provision of the Constitution. The use of international law in such a way has been specifically sanctioned by the Privy Council when giving meaning to express constitutional provisions relating to "fundamental rights and freedoms" …The Universal Declaration states in Article 17: 1. Everyone has the right to own property alone as well as in association with others. 2. No one shall be arbitrarily deprived of his property. ...the prohibition on the arbitrary deprivation of property expresses an essential idea which is both basic and virtually uniform in civilized legal systems. Historically, its roots may be traced as far back as the Magna Carta 1215, Art 52 of which provided: To any man whom we have deprived or dispossessed of lands, castles, liberties or rights, without the lawful judgment of his equals, we will at once restore these… Where there is an ambiguity in the meaning of the Constitution, as there is here, it should be resolved in favour of upholding such fundamental and universal rights. The Australian Constitution should not be interpreted so as to condone an unnecessary withdrawal of the protection of such rights. There is no reason to believe that His Honour did not believe that international law should similarly inform the construction of the state Constitutions. It is arguable, despite State parliamentary supremacy, that State courts should indeed uphold basic common law rights720 in accordance with 718 Justice Susan Crennan "Magna Carta, common law values and the Constitution" (Victoria Law Foundation law oration Melbourne, 21 May 2014). 719 Justice Susan Crennan "Magna Carta, common law values and the Constitution" (Victoria Law Foundation law oration Melbourne, 21 May 2014). 720 Life, liberty and property. See Suri Ratnapala and Jonathan Crowe, Australian Constitutional Law: Foundations and Theory (Oxford University Press, 3rd ed, 2012), 153-7. 225 the doctrine of ‘institutional integrity’721 as a bridge to the ‘separation of powers’ as well as ‘rule of law’ principles. Hence, legislation such as that in question in Queensland, offends both the concurrently-operating Queensland Constitutions as well as the Magna Carta and international law. Nevertheless, it is possible to wind back freedoms, if done in the clearest manner. This accords with an early view, in respect of Queensland’s then single Constitution, expressed by the Privy Council: Narrow constructions were placed by colonial Judges upon ...[Colonial] Constitutions.... [The answer was…] reflected in an opinion cited in the course of the argument and given in 1864 by the law officers of the day.... These distinguished lawyers were of opinion... that when legislation within the British Empire which is inconsistent with constitutional instruments of the kind under consideration comes for examination before the Courts, it is unnecessary to consider whether those who were responsible for the later Act intended to repeal or modify the earlier Act. If they passed legislation which was inconsistent with the earlier Act, it must be presumed that they were aware of, and authorised, such inconsistency. 722 That is, if it were the intention of the Parliament of Queensland to remove property rights from individual Queenslanders, so that corporations might access profits, it ought to say so very clearly in the legislation, or possibly the explanatory memorandum. For example, it could state that “The intention of this Bill is to remove property rights from individual Queenslanders, so that corporations might access profits.” This is simple, clear, with nothing ambiguous about it. This principle was reiterated by the High Court in Coco v The Queen:723 “The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language.” Former NSW Chief Justice Spigelman also addressed this issue when he drafted a so-called “Common Law Bill of Rights.” This took the form of a set of rebuttable presumptions that parliament does not intend to abrogate. Specifically, drafted for State consumption, he elucidated this to determine upon what basis, if any, state legislatures may abrogate fundamental rights such as the right to be free from interference with vested property rights.724 A less obvious place to look is amongst Common Law principles and doctrinal guidelines, which have their roots in the inextricable historical development of Common Law as well as English 721 The Doctrine of ‘Institutional integrity’ ensures that a coherent, unified national judiciary is preserved in respect of the judicial powers of the States under the Kable principle. See George Williams, Sean Brennan and Andrew Lynch, Australian Constitutional Law and Theory: Commentary and Materials (The Federation Press, 6th ed, 2014) 504-5; 627-52. 722 McCawley v The King (1920) 28 CLR 106, 120. 723 (1994) 179 CLR 427, 437. 724 Hon. JJ Spigelman AC, ‘The Common Law Bill of Rights’ (2008) McPherson Lectures: Statutory Interpretation and Human Rights (online) Constitutionalism.725 This lineage of legitimacy of common law and constitutionalism is well- established. Chapter 29, Magna Carta, states that no freeman shall be taken or imprisoned, or be disseised of his freehold, or liberties or free customs, or be outlawed or exiled, or in any way otherwise destroyed; nor will we pass upon him, nor condemn him, but by lawful judgment of his peers, or by the law of the land. We will sell to no man, we will not deny or defer to any man either justice or right.726 This is the first definitive black letter limitation on the royal prerogative regarding property rights. It established the common law presumption against unfettered interference with freehold property by the executive or legislature. This conception was extended over time and ultimately by Edward Coke CJ, who is celebrated for his opposition to Stuart absolutism. Following his dismissal from the position of Chief Justice of the Court of Common Pleas, Coke was responsible for drafting the Bill of Liberties against the royal prerogative. The bill claimed ancient rights said to have been granted by Magna Carta, and establishes the proposition that improper taxation, sequestration of property or imposition of expenses cannot be enacted. In 1628, the bill was presented to Charles I as the ‘Petition of Right’ and in its statutory form it stands after Magna Carta as the second great constitutional document in English legal history.727 The authors contend that the revolutionary nature of the document means that in 2018, it binds the legislature in the same way that it binds the monarch, although it probably doesn’t matter if it does not bind the legislature, because it binds the monarch. Who actually makes the laws in Queensland? It’s a commonly held misconception that, in Queensland, Parliament makes laws. But if one looks at any act of Parliament passed until recently by the Legislative Assembly of Queensland, one finds the words “BE IT ENACTED by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Assembly of Queensland in Parliament assembled, and by the authority of the same, as follows:” So it is the Queen who makes laws. Queensland is a parliamentary democracy, but it comes as a surprise to many observers to find that it actually has two working parts - the Assembly and the Queen.728 The Queen’s assent is necessary for the passage of every piece of legislation. The Queen’s prerogative (vested in the Governor of Queensland who acts in the place of an upper house of parliament)729 is fettered, and the authors 725 Suri Ratnapala and Jonathan Crowe, Australian Constitutional Law: Foundations and Theory (Oxford University Press, 3rd ed, 2012) 3-6. 726 Imperial Acts Application Act 1984, (Qld) s 5, sch 1. 727 Petition of Right (1627) 3 Car 1. 728 Constitution Act 1867 (Qld), s2A. 729 “The Parliament of Queensland consists of the Queen and the Legislative Assembly. Queensland is the only jurisdiction in Australia that does not have an upper house, with the Queensland Legislative Council 227 argue that the limits of her power to assent are those set out in the speech of former Attorney General and now senior member of the Tasmanian Bar, Duncan Kerr SC, when he chaired the 2011 UNSW Constitutional Law Convention.730 That traditional conception of prerogative powers was bound by assumptions, implications and unbidden conventions which are derived, amongst other places, from the fundamental British constitutional doctrine which existed at the time the respective constitutions of the colonies and the Commonwealth were passed. The prerogative was a bundle of rights possessed by the Crown quite distinct in law from the rights of common persons,731 and it includes the right to resume property. So, the government can pass legislation, only to the extent allowed by the Crown’s prerogative powers. The constitutional limits of those powers are the same as those which bound the Monarchy after the Petition of Right, the Glorious Revolution and even earlier, the Magna Carta. No Act of Parliament can expand on them. Parliament cannot conclusively "recite itself" into power because, to borrow the metaphor used by Fullagar J in the Communist Party case, "a stream cannot rise higher than its source".732 The Crown is particularly bound in the case of land acquisitions because it is the Crown, and not Parliament, which has the unique power733 to compulsorily resume land. It may well be that “... it is a function of the Executive, not of Parliament, to make contracts on behalf of the Crown,”734 but that cannot expand the powers of the Crown beyond the Common Law limits set as early as 1648. By extension, the Constitutions of Queensland limits the powers and legal capacity of the state to that of an individual. In our introduction, we argued that an individual only has legal capacity to do what is lawful. If an individual does what is unlawful, he or she is liable to criminal prosecution. If an individual makes a profit improperly, he or she must repay it at the suit of an innocent and injured party.735 Equally, individuals may not involve themselves in harsh or oppressive conduct which injures the rights of others.736 They are likely to be defeated at the suit of those who are injured by their actions if they engage in conduct which is received on the basis of “an inequality so strong, gross and manifest that it must be impossible to state it to a man of common sense without producing an exclamation of the inequality of it”.737 having been abolished in 1922. In Queensland, the Queen’s role in the Parliament is performed by the Governor.” Queensland Legislation, Department of the Premier and Cabinet, s1.4.1. 730 Duncan Kerr, ‘Executive Power and the Theory of its Limits: Still Evolving or Finally Settled?’, (Keynote lecture, UNSW Gilbert and Tobin Centre of Public Law Constitutional Law Conference, 2011). 731 Pape v Federal Commissioner of Taxation (2009) 238 CLR 1 at 60 [126] (French CJ), 85 [220] (Gummow, Crennan & Bell JJ). 732 Australian Communist Party v Commonwealth (1951) 83 CLR 1, 258. 733 H W R Wade, ‘Procedure and Prerogative in Public Law,’ (1985) 101 Law Quarterly Review 180, 191. 734 New South Wales v Bardolph (1934) 52 CLR 55, 509 (Dixon, J) See also 502 (Starke J), 523 (McTiernan J). 735 See for example Sanford v Sanford Courier Service Pty Ltd (1987) 5 ACLC 394. 736 See for example Roberts v Walter Developments Pty Ltd (1997) 15 ACLC 882. 737 Duncan Mackenzie Kerly, ‘An Historical Sketch of the Equitable Jurisdiction of the Court of Chancery’, Yorke Prize Essay of the University of Cambridge for 1889, (University Press, 1890) 240. 228 This accordingly fetters the power of the State of Queensland. Persuasive authority comes from another common law appellate court, Malaysia’s High Court. In that forum, one based as is our own Supreme Court on the English Common law system, Raja Azlan Shah declared in Pengarah Tanah & Galian, WP v Sri Lempah Enterprise Sdn Bhd738 Every legal power must have legal limits, otherwise there is dictatorship. The Courts are the only defence of the liberty of the subject against departmental aggression. In these days when government departments and public authorities have such great powers and influence, this is a most important safeguard for the citizen; so that the courts can see that these great powers… are exercised in accordance with law. Whether a dictatorship previously existed in Queensland may be a matter of historical debate, but the constant changes of government since the 1990s indicate that no dictatorship exists now. The authors assert that the Malaysian High Court opinion above aptly and authoritatively supports the proposition that no institution of Westminster government is, nor should be omnipotent, not even in the case where Parliament is said to be supreme. It is further contended that the words “good government”, received in the Queensland state constitutions, carry within them the same limitations and protections for basic rights. We don’t deny that “The words ‘peace, order and good government’ connote, in British constitutional language, the widest law-making powers appropriate to a Sovereign,”739 but note that the phrase just quoted, from a Privy Council case involving the width of power of the Parliament of Sri Lanka, did not say that those powers were unlimited. Nor did the Privy Council remove those limitations in the British Indian Ocean Territories case: I am unable to accept that those words, even from such an authoritative source, compel this court to abandon the ordinary meaning of language, and instead to treat the expression “for the peace order and good government” as a mere formula conferring unfettered powers on the commissioner.740 There is a separate argument which can be made as to the proposition that property rights are inviolable. That argument can be made by the application of common law principle and rule of law Ideal type, with narrow exceptions subsisting, by the US Supreme Court especially with respect to Justice Hugo Black’s doctrine of ‘incorporation’ regarding the US Bill of Rights.741 While the court never accepted Justice Black’s incorporation idea in total it did so in majority agree that with narrow exceptions basic rights should be incorporated into State law. This, as we have argued, is similar to the position taken generally by the Australian High Court. 738 [1978] 1 LNS 143 (Malaysia). 739 Ibralebbe and Another v The Queen [1964] AC 900. 740 R (On the Application of Bancoult) v The Secretary of State for Foreign and Commonwealth Affairs [2001] QB 1067. 741 Everson v Board of Education of the Township of Ewing (1947) 330 US 1 (US Sup Ct). 229 In support of the proposition that the basic or fundamental rights at common law should be applicable and incorporated into State jurisprudence, as advocated by Black, J and protected from unjust legislative abrogation as we argue, the United States Supreme Court, under Chief Justice Warren ultimately made almost all guarantees of the Bill of Rights binding upon the states in the 1960s. So, although the US Supreme Court initially failed to accept Black's theory of total incorporation, especially after the culminating decision in Gideon v Wainright,742 the outcome of its jurisprudence over time has been very close to what Black had envisioned. It follows from the above propositions, based on jurisprudence from multiple common law jurisdictions, as an argument separate from the meaning of the words “good government”, that any unreasonable or arbitrary State contravention of the ‘just terms’ principle would be a clear violation of the doctrinal traditions derived from common law principles. The weight of argument and constitutional precedent against any opposing position effectively writes down the position taken by the Queensland legislature, especially when considered in concert with the meaning and implications of the words ‘good government’. In the form of a syllogism, if good government does not mean bad government, and if unjust compulsory acquisition of property is bad government, it follows that the Queensland government is acting in contravention of well established, inviolable constitutional principles. The current situation whereby land may be compulsorily resumed in Queensland Private corporations which build public infrastructure are able, in their proposals, to dictate to a State government that they want specific private lands occupied by houses and/or businesses to be the subject of compulsory acquisition… which means that the corporation makes a profit, but the landowners lose their homes and businesses. The disposed landowner receives “market value” in return, but they receive very little extra compensation for the amount of disruption that this causes in their lives and livelihood, whether in terms of packing costs, the cost of actually finding somewhere else to live, or the stress of adjusting to living in a new neighbourhood. As one of the present authors argues in a doctoral thesis, adopting a point made elsewhere by Kevin Gray,743 a purely private acquisition of land can currently be argued to be serving a legitimate purpose of government if there is any public benefit whatsoever, even the creation of jobs.744 So whilst in Prentice v Brisbane City Council,745 the Supreme Court of Queensland refused to allow a municipality to acquire land from a private owner ‘compulsorily, and against his will’ merely for the purpose of facilitating a proposed development mooted to the council by a private developer, there 742 (1963) 72 U.S. 335. 743 Kevin Gray, ‘There’s No Place Like Home!’ (2007) 11(1) Journal of South Pacific Law 76 744 Kevin Gray, ‘There’s No Place Like Home!’ (2007) 11(1) Journal of South Pacific Law 76 745 [1966] Qd R 394, 406. 230 is no reason why the law cannot be changed. It has been in New South Wales, and there are a disturbing number of press reports746 suggesting that legislative change in Queensland will increasingly make this possible. Once the land is acquired, current compulsory acquisition doctrines in Queensland stipulate that Governments should calculate compensation according to market value principles. The relevant legislation is the Acquisition of Land Act 1967 and that Act adopts the Principle of Equivalence (PoE). This means, in Queensland, that a home in terms of a legal interest is nothing more than a freely exchangeable commodity, where all parties, including the dispossessed home owner, are willing participants in the transaction. There is no compensation in the terms set out in Commonwealth v Amann Aviation Pty Ltd: “The general principle governing the assessment of compensat[ion]... is that the plaintiff should receive the monetary sum which, so far as money can, represents fair and adequate compensation for the loss or injury sustained by reason of the defendant's wrongful conduct,”747 including compensation for special circumstances outside the ‘ordinary course of things’ as are known or reasonably foreseeable to the party causing the loss and which would be liable to cause loss,748 such as the psychological damage of a forced relocation. The vesting of the lands of the less powerful in the hands of the more powerful is the sort of action that gave rise to the civil unrest that resulted in both the Magna Carta and the Petition of Right. On that basis, we conclude that those provisions of the Acquisition of Land Act 1967 (Qld) which would allow the government of Queensland to compulsorily acquire property without making compensation for the time, trouble, and mental anguish thereby caused have not been passed for the “peace, order and good government” of Queensland. It follows that they are either outside the competence of the Legislative Assembly to pass, or outside the Royal Prerogative of Her Majesty the Queen, such as Her Majesty could not consent to such legislation; or both. They are, accordingly, in our view, invalid. Mr John Sturgeon & Mr Stephen Pitt-Walker July 2018 746 See for example Charlie McKillop, Mark Jeffery and Amy McCosker, ‘Political strain pushes federal MP to breaking point as community anger grows over compulsory defence acquisitions,’ ABC Rural, 23 January 2017; Jim Gainsford, ‘WestConnex letters anger St Peters residents,’ Sydney Morning Herald, 25 January, 2015; Clay Lucas, ‘Residents angry they will lose their homes to East West Link despite government’s own advice,’ The Age (Melbourne) 2 July, 2014. 747 Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64, 116 (Deane J). 748 Victoria Laundry (Windsor) Ltd v Newman Industries Ltd [1949] All ER 997. 231