3.1 Aerial's case
28 Aerial submitted that its accreditation involves an entitlement to operate a taxi booking service. That entitlement is "property", property being "the most comprehensive term that can be used and extends to every right or interest, including incorporeal rights" including "innominate and anomalous interests" (citing, in support, JT International SA v Commonwealth (2012) 291 ALR 669; [2012] HCA 43 (the Plain Packaging case) at [366] and [41] respectively and Bank of New South Wales v Commonwealth (1948) 76 CLR 1 at 349). Rights derived from statute may be property (Plain Packaging case at [29], [35] and [263], Minister for Primary Industry and Energy v Davey (1993) 47 FCR 151 (Davey) at 160B, Commonwealth v WMC Resources Limited (1998) 194 CLR 1; [1998] HCA 8 (WMC Resources) at [14], [45] and [179]). Property need not necessarily be assignable if the right is otherwise "definable, identifiable by third parties… and [has] some degree of permanence or stability" (Australian Capital Television Pty Ltd v The Commonwealth (No 2) (1992) 177 CLR 106 (Australian Capital Television) at 165-166, citing R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 (Meneling) at 342 and Lord Wilberforce in National Provincial Bank Ltd v Ainsworth [1965] AC 1175 (Ainsworth) at 1247-1248). The accreditation in this case "carries with it an identifiable, stable and valuable legal right; namely, the right to operate a taxi booking service…[and] is analogous to licences and permits that have been treated as constituting property under s 51(xxxi) of the Constitution".
29 Aerial acknowledged that the mere extinguishment of a statutory right does not involve the acquisition of property as there must be receipt of something seen from the perspective of the acquirer for there to be an acquisition; something of a proprietary character must accrue, although it may be 'slight or insubstantial', the concept of acquisition being liberally construed (the Plain Packaging case at [42], [118], [169]-[170], [302]-[306]). According to Aerial, in the present case, its accreditation, by reason of ss 28, 29, 32 and 33 of the Transport Act:
[c]onfer[s] upon Aerial statutory rights which are valuable to it. They include the right to receive telephone bookings from customers and refer them, for reward, to affiliated taxi operators.
30 Further, the Amendment Regulation, by introducing the new ss 74 and 154M which prohibits Aerial from operating a WCBS:
partially extinguishes that right by creating a class of bookings which Aerial is prohibited from referring to its affiliates, but must instead transfer such bookings to another service - Celltrack [Celltrack is the entity with which the Act entered into a service contract for the purposes of s 154L of the Transport Regulation]. Celltrack may then earn a reward by referring those bookings to wheelchair-accessible taxis despite being neither accredited as a taxi network nor as another entity expressly recognised by the Road Act as being authorised to provide taxi booking services. Celltrack thus receives a statutory benefit which corresponds to that which was taken from Aerial.
31 Aerial rejected the proposition that its statutory right was granted on the basis that it is subject to modification or extinguishment according to the dictates of public policy from time to time (in contrast to Davey and WMC Resources). Contrary to the ACT's submissions, the statutory scheme "assumes the continued existence of the taxi network's basic function (being the right to receive and refer bookings), while at the same time allowing standards to be implemented from time to time concerning the manner in which that function may be performed". The respondent's submissions to the contrary, according to Aerial:
confuses the power of the Executive to make regulations and service standards for the operation of taxi networks (which power always existed), with the power of the Executive for the effective removal of a class of customers from the taxi network.
32 In Davey, Bienke v Minister for Primary Industries (1996) 63 FCR 567 (Bienke) and WMC Resources, by contrast to the present case, the grant of the right was expressly made subject to the statutory regime as it stood from time to time (see also the Plain Packaging case at [104]). Moreover, it cannot be said that the Amendment Regulation merely regulates the operation of Aerial's business as the Act submitted. According to Aerial:
At its essence, Aerial's business is the taking of taxi bookings from the public and the referral of those bookings to its affiliated taxi drivers. A regulation of Aerial's business would involve prescribing the manner in which that business is conducted. The [Amendment Regulation] goes much further. It prohibits Aerial from conducting its business with respect to a class of customers and requires Aerial to direct such customers to the WCBS.
33 Aerial also rejected the characterisation of this case as one where a mere immunity is extinguished or reduced in scope, without any consequential conferral of rights on somebody else (as referred to in WMC Resources at [16], [79] and [185]-[189] and the Plain Packaging case at [44], [101], and [188]-[189]). This is because the Amendment Regulation not only extinguished Aerial's right but also conferred rights or benefits on the WCBS, being Celltrack. The right, to receive telephone bookings from customers seeking wheelchair-accessible taxis and refer those bookings to wheelchair-accessible taxis, is the very same right. According to Aerial the "result is in substance a compulsory transfer of part of Aerial's statutory rights to Celltrack", a point emphasised by the fact that "Aerial is not only prohibited from taking bookings on behalf of certain customers, but positively obliged by new s 74…to direct their booking requests to Celltrack". As Aerial put it:
even if the relevant right were inherently subject to extinguishment or diminution, that would not avail the respondent if the effect of the amendment is, in substance, to take part of the right and confer it on somebody else. It is one thing to say that a statutory right is inherently subject to modification by amendments of a regulatory regime in the public interest, but quite another to say that such a right is liable to recall and re-allocation to another person.
34 The facts that Celltrack is subject to a different system of regulation, is supported by government funding, and is not an accredited taxi network operator are immaterial. The relevant fact, submitted Aerial, is that the "right acquired by Celltrack is, in substance, the same right lost by Aerial".
35 Aerial submitted also that the ACT's submissions about the Amendment Regulation merely adjusting competing rights in an area of activity should not be accepted. According to Aerial:
[t]he breadth of that principle should not be overstated. It does not appear to have been applied by the High Court, in the broad terms seemingly adopted by the respondent, since Nintendo Co Ltd v Centronics Systems Pty Ltd [(1994) 181 CLR 134 (Nintendo)] The reasoning of the majority in Airservices Australia v Canadian Airlines [(1999) 202 CLR 133; [1999] HCA 62 (Airservices] and Theophanous v Commonwealth [(2006) 225 CLR 101; [2006] HCA 18 (Theophanous)] turned on the narrower proposition that s 51(xxxi) of the Constitution does not apply in circumstances where a requirement for just terms would be irrelevant or incongruous (e.g. taxation, penalties and forfeitures). Reasoning of the kind relied on by the respondent was criticised by McHugh J in Airservices [at [332]-[341]] and by Callinan J in Smith v ANL Ltd [(2000) 204 CLR 493; [2000] HCA 58 (Smith v ANL) at [175]-[181]] (where other members of the majority said [at [43]] that, apart from heads of power which necessarily contemplate interferences with property (such as taxation), s 51(xxxi) takes away from other Commonwealth powers "all content which otherwise would enable the compulsory acquisition of property").
In ACT v Pinter [(2002) 121 FCR 509; [2002] FCAFC 186 at [95]] Black CJ held that where it has been established that a proprietary right, which has been created by statute where no property interest previously existed, is not inherently liable to modification or extinguishment, the principle referred to above provides no ground for saying that the relevant law is not a law with respect to the acquisition of property. This is because the exercise of characterisation is substantially the same as that undertaken in order to determine whether statutory property rights are of a nature that can be subject to an acquisition.
Applying this reasoning, Aerial's arguments would not be defeated using this argument if the Court has already found that the [Amendment Regulation] has effected an acquisition. In any case, the taking away of a segment of Aerial's business, and the allocation of that segment to the WCBS contractor, lies at the heart of the reform intended to be effected by the [Amendment Regulation]. It cannot be described as merely incidental.
36 Aerial also characterised the ACT's submissions as creating:
a false dichotomy between a legislative scheme for the protection of the public and a scheme under which property rights are created. These two functions are compatible, not mutually exclusive. It is in the community's interest to encourage accredited taxi network operators to invest in better taxi booking services for the community. A scheme which confers stable rights on accredited taxi network operators provides the certainty operators need to commit to such investments.
37 The Amendment Regulation thus involves an acquisition of Aerial's property but without providing just terms as, in Aerial's words, "no provision has been made for monetary compensation to Aerial, or for any augmentation of its rights that could be regarded as a quid pro quo". The ACT's argument that if there is an acquisition of property the terms of the acquisition are just because it "constitutes a 'fair dealing' between Celltrack, accredited network operators and the members of the broader community" should not be accepted. If correct, it means that "community interests" should be considered in determining what is just. According to Aerial the ACT's submission:
is clearly contrary to decisions of the High Court and recent considered dicta by one of its members [the Plain Packaging case at [235]-[236] and Georgiadis v Australian and Overseas Telecommunications Commission (1994) 179 CLR 297 (Georgiadis) at 308, 310 and 311, and Smith v ANL at [8]-[9], [51], [54], 110]-[113], and [198]]. As Brennan J observed in [Georgiadis at 310-311], the purpose of the guarantee of just terms is to ensure that people whose property is compulsorily acquired, presumably for public benefit, are not required to sacrifice their property for less than its worth.
38 In response to the ACT's argument that the Amendment Regulation should be read down having regard to ss 5, 6 and 43 of the Legislation Act 2001 (ACT) (the Legislation Act), so that, if effecting an acquisition of property on other than just terms, the Amendment Regulation should be read so as not to effect such an acquisition (in Aerial's case the practical result being that s 74(2) of the Amendment Regulation would not apply to Aerial for so long as it held its current accreditation), Aerial made two points. First, the argument involves reading in a transitional provision which is outside the scope of any legitimate reading down of a regulation so it is within power. Second, the provisions of the Amendment Regulation, ss 101A, 114 and 154I in particular, disclose a manifest contrary intention to the operation of the law as the ACT proposes; the manifest intention is that the law operate as a whole or not at all.