Sussing out the vibe: Federal property acquisition and the search for a principled approach to the scope of the ‘just terms’ proviso in s 51(xxxi) of the Australian Constitution Ilan Lewis A thesis in fulfilment of the requirements for the degree of Masters of Law Faculty of Law August 2016 1 THE UNIVERSITY OF NEW SOUTH WALES Thesis/Dissertation Sheet Surname or Family name: Lewis First name: Ilan Other name/s:Roland Abbreviation for degree as given in the University calendar: LLM School: Law Faculty: Law Title: Sussing out the vibe: Federal property acquisition and the search for a principled approach to the scope of the ‘just terms’ proviso in s 51(xxxi) of the Australian Constitution. Abstract 350 words maximum: In relation to the case law dealing with the scope of s 51(xxxi) of the Australian Constitution (‘the Proviso’) it has been suggested that no coherent line of principle emerges, that one meets undisclosed processes of reasoning and that, as a consequence, the Proviso’s operation is unpredictable. This dissertation gives an account and critique of the increasing incoherence of s 51(xxxi) jurisprudence and the High Court’s failure to articulate the constitutional values the Proviso serves to protect. A comprehensive account is given of the Proviso’s inherent interpretive challenges and the various approaches the High Court has adopted to tackle them. The thesis considers in detail the Proviso’s complex interrelationships with other constitutional powers and limitations. It is argued that understanding these interrelationships is a necessary pre-requisite to understanding the problems the Proviso throws up and the formulation of possible solutions. In this context, it considers whether the Proviso’s protective scope can be coherently described as a function of whether or not a given acquisition operates arbitrarily or breaches various tenets of the rule of law. Are decisions dealing with the Proviso’s scope explicable on the basis that the Proviso operates to proscribe legislation which offends such principles as non-retrospectivity, generality and the separation of powers - at least in the property domain? Four cases dealing with the application of the Proviso to what might be called ‘retrospective interests,’ that is, interests arising by way of the retrospective operation of judicial decisions are analysed in detail. It is argued that by excising these types of cases from the mainstream of s 51(xxxi) jurisprudence an opportunity to clarify other areas of doctrine and reconcile other decisions opens up. Finally, various accounts of the Proviso’s purpose or function are evaluated. The thesis concludes that, while various rule of law principles provide a useful guide to understanding the High Court’s decisions in many instances, there exist a number of hard limits on reconciling existing case law and that it is easy to overstate the degree of coherence to be found within it. Declaration relating to disposition of project thesis/dissertation I hereby grant to the University of New South Wales or its agents the right to archive and to make available my thesis or dissertation in whole or in part in the University libraries in all forms of media, now or here after known, subject to the provisions of the Copyright Act 1968. I retain all property rights, such as patent rights. I also retain the right to use in future works (such as articles or books) all or part of this thesis or dissertation. I also authorise University Microfilms to use the 350 word abstract of my thesis in Dissertation Abstracts International (this is applicable to doctoral theses only). …………………………………………………………… ……………………………………..……………… ……….………………… Signature Witness Signature Date The University recognises that there may be exceptional circumstances requiring restrictions on copying or conditions on use. Requests for restriction for a period of up to 2 years must be made in writing. Requests for a longer period of restriction may be considered in exceptional circumstances and require the approval of the Dean of Graduate Research. FOR OFFICE USE ONLY Date of completion of requirements for Award: 2 COPYRIGHT STATEMENT ‘I hereby grant the University of New South Wales or its agents the right to archive and to make available my thesis or dissertation in whole or part in the University libraries in all forms of media, now or here after known, subject to the provisions of the Copyright Act 1968. I retain all proprietary rights, such as patent rights. I also retain the right to use in future works (such as articles or books) all or part of this thesis or dissertation. I also authorise University Microfilms to use the 350 word abstract of my thesis in Dissertation Abstract International (this is applicable to doctoral theses only). I have either used no substantial portions of copyright material in my thesis or I have obtained permission to use copyright material; where permission has not been granted I have applied/will apply for a partial restriction of the digital copy of my thesis or dissertation.' Signed ……………………………………………........................... Date ……………………………………………........................... AUTHENTICITY STATEMENT ‘I certify that the Library deposit digital copy is a direct equivalent of the final officially approved version of my thesis. No emendation of content has occurred and if there are any minor variations in formatting, they are the result of the conversion to digital format.’ Signed ……………………………………………........................... Date ……………………………………………........................... Originality Statement ‘I hereby declare that this submission is my own work and to the best of my knowledge it contains no materials previously published or written by another person, or substantial proportions of material which have been accepted for the award of any other degree or diploma at UNSW or any other educational institution, except where due acknowledgement is made in the thesis. Any contribution made to the research by others, with whom I have worked at UNSW or elsewhere, is explicitly acknowledged in the thesis. I also declare that the intellectual content of this thesis is the product of my own work, except to the extent that assistance from others in the project's design and conception or in style, presentation and linguistic expression is acknowledged.’ Signed....................................... Date.......................................... 3 ACKNOWLEDGEMENTS For their patience, input and suggestions I am greatly indebted to my supervisors Prof. Theunis Roux and Prof. Brendan Edgeworth as well as my review panel members, Assoc. Prof. Lyria Moses, Fergal Davis, Assoc. Prof. Sean Brennan and Prof. George Williams AO. I also wish to thank Jenny Jarrett at UNSW whose administrative prowess and sympathetic ear was indispensable. For comments on various parts of this Thesis I thank Keith Mason QC and Evelyn Waygood. I am also grateful to my partner Christina Newman for her support and encouragement and our son Henry whose timely arrival spurred the completion of this thesis. 4 Sussing out the vibe: Federal property acquisition and the search for a principled approach to the scope of the ‘just terms’ proviso in s 51(xxxi) of the Australian Constitution Table of Contents Table of Contents ...................................................................................................... 5 Introduction.............................................................................................................. 9 Chapter Outlines ........................................................................................................... 10 1 Chapter 1 – Exposition and Exploration of Existing Doctrine ............................. 12 1.1 Problem Statement ............................................................................................ 12 1.2 General Approaches and Overt Justifications ...................................................... 14 1.3 Exegetical Challenges and Characterisation ......................................................... 17 1.4 Property ............................................................................................................. 23 1.5 Acquisition ......................................................................................................... 26 1.6 For Any Commonwealth Legislative Purpose ....................................................... 34 1.7 On Just Terms ..................................................................................................... 38 1.7.1 ‘Compound Conception’ Exclusions ..................................................................................... 39 1.7.2 Conclusion ............................................................................................................................ 53 1.8 The ‘Tests’ .......................................................................................................... 54 1.8.1 Inherently Subject to Modification test ............................................................................... 55 1.8.2 The ‘General law’ .................................................................................................................. 59 1.8.3 Proportionality ..................................................................................................................... 60 1.8.4 ‘Adjustment of competing claims’ test ................................................................................ 65 1.8.5 Discussion ............................................................................................................................