Authorities previous to Peverill
162 Laws imposing monetary penalties, forfeiting contraband goods or other property or imposing taxation have not been regarded as falling within s 51(xxxi) of the Constitution.
163 It is sufficient in that respect to point to Mutual Pools & Staff Pty Ltd v Commonwealth (1994) 179 CLR 155 ("Mutual Pools"). In that case sales tax paid to the Commonwealth pursuant to an invalid law was the subject of legislation purporting to extinguish any liability, in whole or part, of the Commonwealth to refund the tax so collected. That law was, in like manner, regarded as falling outside of s 51(xxxi). It was characterised as a law with respect to taxation not the acquisition of property (see examples referred to by Mason CJ at 170).
164 There is, however, one distinction to be observed between s 51(xxxi) and s 23(1)(a) of the Self-Government Act. Some Commonwealth heads of power, such as s 51(xxxiii) (acquisition of State railways), "stand outside" s 51(xxxi) by virtue of the terms in which those powers are conferred. There are no specific powers conferred on the Territory Parliament. It merely has its otherwise sovereign powers limited and qualified by certain exclusions. The power to acquire property is a qualified power. It is not necessary in the present matter to consider the effect of that difference.
165 Laws of the Territory imposing fines, forfeiting proceeds of crime, and imposing rates and taxes will fall outside s 23(1)(a) just as they fall outside s 51(xxxi). But is that because there is no acquisition of property or because it is not the kind of acquisition of property to which an expectation of "just terms" can be attached?
166 In Mutual Pools, Mason CJ expressed the view that the law in question was a law with respect to taxation, not the acquisition of property, but even if it was only supported by s 61 (the executive power) and s 51(xxxix) (the incidental power), it was not constrained by s 51(xxxi) (at [175]):
". . . in this case the tax has been passed on to the pool owners, that is, the pool owners have borne the burden of the tax, they too have an interest in the refund of the taxes collected. Thus, notwithstanding the Commonwealth's contractual arrangements with the pool builder [to refund the taxes paid if subsequently found to have been unlawfully collected], the Refund Act [Swimming Pools Tax Refund Act 1992 (Cth)] is in essence a legislative measure directed to achieving a genuine resolution of the competing claims of pool builders, pool owners and the Commonwealth in relation to the refund of moneys in respect of the tax that was invalidly levied. As such, for the reasons discussed above, extinguishment of the cause of action [under the agreement] does not constitute an acquisition of property within the meaning of s. 51(xxxi), even if the Refund Act is to be supported by reference to ss. 61 and 51(xxxix) in relation to the whole or some of its provisions."
167 That passage appears to conflate the notion of "just terms" with the notion of "acquisition of property". That is, that though the contractual right, a chose in action, is extinguished, it was not unjust to do so in the circumstances, either because taxation is necessarily confiscatory or because the resolution of competing claims was not unjust in the circumstances. It has often been emphasised that "acquisition of property otherwise than on just terms" is a composite concept.
168 Brennan J focussed on the "sole or dominant character" of the Refund Act. His Honour considered (at [181]):
"that the extinction of the plaintiff's claim without the provision of just terms is supportable as an exercise of power under s. 51(ii) or under the combined operation of s. 61 and s. 51(xxxix) or under both but not as an exercise of power under s. 51(xxxi). Thus the guarantee of just terms is not attracted . . ."
169 Deane and Gaudron JJ considered the Refund Act to be a law with respect to taxation supportable under s 51(ii). Further, that s 51(xxxi) indirectly reduces the content of other grants of legislative power contained in s 51. However (at 186-7):
"There are two related matters to be noted with respect to s. 51(xxxi)'s operation to confine the content of other grants of legislative power in s. 51. The first is that that operation, being merely indirect as a matter of construction, is necessarily subject to any contrary intention either expressed or made manifest by the words or content of those other grants of power. In particular, some laws which are expressly authorized under other grants of legislative power necessarily encompass acquisition of property unrestricted by any requirement of the quid pro quo of just terms. Laws "with respect to . . . Taxation" are an example. The second is that s. 51(xxxi) is, first and foremost, a grant of power, and only secondarily a guarantee of "just terms" . . . acquisitions to which the grant of legislative power is directed are acquisitions of a kind which permit of just terms. There are some kinds of acquisition which are of their nature antithetical to the notion of just terms but which were plainly intended to be permissible under laws made pursuant to one or more of the grants of power contained in s. 51 … [for example] compulsory forfeiture … for breach of some general rule of conduct . . ."
170 Further examples are detailed at 187-188. It is difficult to see how s 23(1)(a) of the Self-Government Act could have a different effect merely because the legislative powers which it qualifies are not enumerated. The essence of the test adopted by Deane and Gaudron JJ seems to be that of characterisation of the laws being scrutinised. If a law effects an acquisition of property, a question arises as to whether it is of a kind which of its nature excludes consideration of "just terms".
171 One such category, not attracting characterisation as a law with respect to the acquisition of property, was identified by their Honours as (at 190):
"laws defining and altering rights and liabilities under a government scheme involving the expenditure of government funds to provide social security benefits or for other public purposes. A law falling within either of those categories may, as an incident of its operation or enforcement, adjust, modify or extinguish rights in a way which involves an "acquisition of property" within the wide meaning which that phrase bears for the purposes of s. 51(xxxi). Yet, if such a law is of general operation, it is unlikely that it will be susceptible of being properly characterized, for the purposes of s. 51 of the Constitution, as a law with respect to the acquisition of property for a purpose in respect of which the Parliament has power to make laws. The reason why that is so is that, even though an "acquisition of property" may be an incident or a consequence of the operation of such a law, it is unlikely that it will constitute an element or aspect which is capable of imparting to it the character of a law with respect to the subject matter of s. 51(xxxi)."
172 This proposed test focuses not on whether there has been an "acquisition of property", nor whether the acquisition is for a Commonwealth purpose but rather whether the requirement for "just terms" is attracted. That the right extinguished (wholly or partially) is created by statute, is funded by Government revenues, and is of general application, may, but not necessarily will, indicate that the liability to such modification is to be a term or characteristic of the right conferred so that the entitlement to just terms is not attracted.
173 The "adjustment of competing claims" effected by the Refund Act, and the fact that the refund was denied to claimants who had already received the benefit of the refund from their customers, persuaded their Honours that the law was not "within the reach of the guarantee of just terms".
174 Dawson and Toohey JJ focused on the notion of acquisition as opposed to extinguishment. However, recognising perhaps, the artificiality of a claim that a debtor who pays a debt, then takes the money back, may have "acquired" property of the creditor but that the destruction of a creditor's right to recover a debt is mere "extinguishment" (a distinction abandoned in Georgiadis), their Honours went on to adopt a view that money was not "property". Though that distinction would explain why laws imposing taxation will fall outside s 51(xxxi), the notion that value, represented by money or a chose in action, is not "property" within the meaning of s 51(xxxi), may now be regarded as having been discarded.
175 McHugh J noted that the original invalid law imposing sales tax could have been validated retrospectively. To pass a less onerous law was not only valid but was a law with respect to taxation, not, therefore, involving an acquisition of property "within the meaning" of s 51(xxxi). His Honour sought to explain that conclusion, inter alia, in the following terms (at 219-20):
"When, by a law of the Parliament, the Commonwealth or someone on its behalf compulsorily acquires property in circumstances which make the notion of fair compensation to the transferor irrelevant or incongruous, s. 51(xxxi) has no operation."
176 For example, taxation necessarily involves an acquisition of property. It would be "simply absurd" for property, forfeited pursuant to Customs or Proceeds of Crime or like legislation, to be subject to "just terms."
177 Nevertheless, his Honour warned that (at 223):
"In construing an important constitutional guarantee such as s. 51(xxxi), the Court must be astute to ensure that the Parliament does not evade the guarantee by devices which have the effect that in substance, although not in form, the Commonwealth acquires the property . . . without providing just terms."
178 The more satisfactory analysis of the reason for determining that what appears to be an "acquisition of property" does not attract the "just terms" protection thus seems to lie in the nature of the right affected. If it is "inherently susceptible" of abolition whether or not vested, or if it is of a kind necessarily outside the scope of any legitimate expectation of compensation, then no requirement for "just terms" is attracted. Nor is such an expectation attracted if the nature of a right created, expressly or impliedly, is that it is subject to withdrawal without compensation. On the other hand, if there is an "acquisition of property" a Court should be slow to yield to a conclusion that "just terms" are not required.
179 There had been some consideration afforded to that notion in Georgiadis. That case had involved the extinguishment of the right to sue a Commonwealth employer for damages at common law in respect of a work injury and its replacement by, admittedly, less favourable entitlements. The right to sue the Commonwealth for tortious injury had, itself, been conferred by statute.
180 Nevertheless, the majority (Mason CJ, Brennan, Deane and Gaudron JJ) found that, in respect of a chose in action vested upon negligent injury and not statute-barred, an employee could claim the protection of s 51(xxxi) in relation to a claim in respect thereof against the Commonwealth (or an agency of the Commonwealth).
181 Dawson and Toohey JJ took the view, now discredited, that "acquisition" differed from "extinguishment", hence their dissent.
182 McHugh J dissented on the basis that the right to sue, being statutory, could be statutorily revoked without attracting s 51(xxxi). His Honour abandoned that view in Mutual Pools.
183 Then there is the decision in Peverill's case upon which the appellant principally relies.
184 Dr Peverill had performed (pathology) services for patients. They were entitled to a rebate if they submitted his bill to the Commission. Alternatively, they could assign their rights to the treating doctor. In that case, the doctor lost the right to a fee from the patient. Instead, he or she would receive the rebate. This resulted from the provisions of the Health Insurance Act 1973 (Cth). There was a schedule of rebateable fees. The Commission claimed that a low rate of fee applied. Dr Peverill disagreed. He contended that a higher priced item was applicable. According to the Federal Court, he was right. The Commonwealth Parliament passed an amending Act with purported retrospective effect, entrenching the Commission's position. It deprived Dr Peverill of an expectation that he would receive a substantial sum of money. He challenged the amending Act. The cause was removed into the High Court. Dr Peverill had not only received the assignments of benefits in reliance upon which he had rendered his services, he had also submitted those assignments to the Commission which had accepted but not yet paid them (partly due to the dispute settled by the Federal Court) when the amending Act took effect. Dr Peverill contended that his vested right to payment, based on his contract with his patients and backed by the statutory indemnity provided by the Act, had been acquired otherwise than on just terms. He lost.
185 Mason CJ, Deane and Gaudron JJ took the view that the statutory devaluation of the property rights acquired by Dr Peverill did not amount to an acquisition, an apparent re-instatement of the view of Dawson and Toohey JJ in Mutual Pools. It was (surprisingly) conceded by Dr Peverill that extinguishment of the right would not have been an acquisition. That would state their Honours' position too simplistically however. At 236, their Honours explained that:
"There is no doubt that the derivation by the Commonwealth of a financial advantage in association with the extinguishment of a right to receive a payment from the Commonwealth may constitute an acquisition of property for the purposes of s. 51(xxxi) of the Constitution. That could even be so in some cases in which extinguishment of the right takes place in the context of some genuine adjustment made in the common interests of competing claims, rights and obligations between another party and the Commonwealth. However, here, the extinguishment of the earlier right to receive payment of a larger amount has been effected not only by way of genuine adjustment of competing claims, rights and obligations in the common interests between parties who stand in a particular relationship but also as an element in a regulatory scheme for the provision of welfare benefits from public funds."
186 Reliance was also placed on the fact that the Commission had considered the amended rate of rebate always to have been appropriate. It was only administrative oversight, corrected by the amending Act, which had enabled Dr Peverill to make the claims he had. In that respect the denial of compensation for the loss of the additional entitlements was seen an analogous with Mutual Pools.
187 The characterisation of Dr Peverill's rights (and those of the patients from whom they were assigned) as "welfare benefits", inherently susceptible of change, was also regarded as significant (at 237):
"Where such change is effected by a law which operates retrospectively to adjust competing claims or to overcome distortion, anomaly or unintended consequences in the working of the particular scheme, variations in outstanding entitlements to receive payments under the scheme may result. In such a case, what is involved is a variation of a right which is inherently susceptible of variation and the mere fact that a particular variation involves a reduction in entitlement and is retrospective does not convert it into an acquisition of property. More importantly, any incidental diminution in an individual's entitlement to payment in such a case does not suffice to invest the law adjusting entitlements under the relevant statutory scheme with the distinct character of a law with respect to the acquisition of property for the purposes of s. 51(xxxi) of the Constitution."
188 This is not an assertion that rights conferred as part of a welfare scheme will, for that reason alone, be denied the protection of s 51(xxxi) or its Territory equivalent, s 23(1)(a). Nor is it authority for the view that the diminution in value of a chose in action will not amount to an acquisition of property within the scope of the constitutional protection of just terms. Rather, it is an assertion that some rights are created with the inherent defect that they are not to be subject to just terms on withdrawal. There is in this case also an element of the Mutual Pools "adjustment of competing claims" notion. It seems that either aspect would be sufficient to exclude s 51(xxxi) or its Territory equivalents from application to rights which can be considered subject to such inherent limitations.
189 Brennan J considered that the nature of the right conferred, not only on the patient treated, but also on the treating doctor taking an assignment of it, was not "property", but rather "a gratuity". It became a "right" only when the Commission actually paid the benefit. His Honour acknowledged that a medical practitioner might be unpersuaded by such a distinction. Nevertheless, in his Honour's view (at 245):
"where a pecuniary benefit payable out of Consolidated Revenue is gratuitously provided by the Parliament to the beneficiary, the amount of the benefit remains until payment within the unfettered control of the Parliament."
190 Dawson J rested his concurrence with the majority on the somewhat unusual consideration that Dr Peverill had chosen to accept the assignment of his patients' entitlements voluntarily. Thus, in his Honour's view (at 250):
"Dr Peverill acquired medicare benefits by assignment from his patients for his own purpose and the acquisition therefore falls outside s 51(xxxi)."
191 That, was, in Dawson J's opinion, analogous to divorce laws providing for compulsory transfers of property between spouses.
192 The latter view was seen by Dawson J as supported by the opinion of Toohey J and himself in Mutual Pools (diminution of liability not an acquisition). That view did not command majority support then. Nor has it since.
193 Toohey J focused not on the voluntariness of the assignment, but on the nature of the right assigned. He accepted that the right so assigned was "property", contrary to the view of Brennan J, but adhered to the view, also adopted by Dawson J, that the property right, though diminished in value, was not "acquired" by the Commission.
194 McHugh J referred to his reasons in Mutual Pools. Those reasons, in his Honour's view, entailed the consequence that the right to medical benefits was to be construed as a "gratuitous statutory benefit". In such a case (at 261):
"… the Commonwealth can regulate a federal statutory entitlement to a payment even after the beneficiary of the payment has fulfilled the conditions entitling that person to the payment provided that the entitlement was made subject to the condition that it could be regulated. It need hardly be said that such a condition may be imposed expressly or by implication or by inference from all the circumstances of the enactment."
195 His Honour did not adopt the contention, which appealed to Brennan J, that no right vested in Dr Peverill until payment was actually made. His Honour did take the view that the law, being with respect to medical benefits, fell outside s 51(xxxi). Presumably that was by reason of the nature of the entitlement. The right to payment was inherently subject to an implied condition of defeasibility, whether retrospectively or otherwise.
196 McHugh J had no difficulty accepting that the right to payment Dr Peverill acquired was "property" and, indeed, a "speciality debt" comprising a "chose in action". It was the inherent defeasibility of that "property" which, in his Honour's view, took its acquisition outside s 51(xxxi).
197 In Nintendo Company Ltd v Centronics Systems Pty Ltd (1994) 181 CLR 134, amending legislation reduced protection otherwise available under the Copyright Act 1968 (Cth) in respect of circuit layouts. That deprived Nintendo of its monopoly rights, otherwise enforceable under that Act.
198 The Court was united in dismissing Nintendo's contention that this amending legislation achieved an acquisition of property protected by s 51(xxxi).
199 The Court, (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ) noted, as to s 51(xxxi) (at 160):
"[t]hat operation of s. 51(xxxi) to confine the content of other grants of legislative power, being indirect through a rule of construction, is subject to a contrary intention either expressed or made manifest in those other grants. In particular, some of the other grants of legislative power clearly encompass the making of laws providing for the acquisition of property unaccompanied by any quid pro quo of just terms."
200 Intellectual property laws will "inevitably" impact on existing proprietary rights. The acquisition of property in such a case "precludes the operation of s. 51(xxxi)". The "relevant character" of such a law (at 161):
". . . is that of a law for the adjustment and regulation of the competing claims, rights and liabilities of the designers or first makers of original circuit layouts and those who take advantage of, or benefit from, their work. Consequently, it is beyond the reach of s. 51(xxxi)'s guarantee of just terms."
201 In the Territory context, the scope of s 23(1)(a) of the Self-Government Act can best be described as abstracting from legislative power otherwise left to the Territory Parliament, the power to acquire property otherwise than on just terms. That abstraction from power does not apply to subject matters which are not apt to be described as involving an acquisition of property in respect of which there would be no legitimate expectation of compensation. The most obvious examples are criminal forfeiture and taxation. That the Territory Parliament's powers are not enumerated, therefore, makes little substantive difference to the approach. The only discernible difference is that, if a specific power of the Commonwealth would attract s 51(xxxi) protection but for its specific wording, that same qualification could not apply to the powers granted to the Territory Parliament by the Self-Government Act.
202 Dawson J, in Nintendo, agreed with the result but for the different reason that the acquisition of property rights in that case was not "for the purposes of the Commonwealth", but those of a third party. His Honour expressed a similar view in Peverill's case. It has some overlap with the concept that adjustment of competing rights or claims is not within the protection of s 51(xxxi).
203 The concept of acquisition was further tested in Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513. The company held mining leases over various areas of the Northern Territory. Legislation designed to protect world heritage interests freed certain of those areas from the liability of being subjected to mining. The effect was to prohibit mining on those areas of land so excepted. The legislation expressly declared that no compensation was payable by virtue of its enactment and proclamation.
204 Brennan CJ, Dawson and McHugh JJ held that s 122 of the Constitution was unqualified by reference to s 51(xxxi). McHugh J, additionally, held that there was no "acquisition", albeit that the leases were "property". Their view was in the minority.
205 Toohey J agreed with both Gaudron J and Gummow J that the law in question was qualified by s 51(xxxi) but on the narrow ground that it was not a law purely for the purpose of the government of the Territory but rather to give effect to another valid purpose, namely, the protection of a world heritage area pursuant to international obligations. That would, of course, support a contention that, but for s 23(1)(a) of the Self-Government Act, a law of or in respect of the Territory alone would not be constrained by s 51(xxxi).
206 Gaudron J agreed with Gummow J that a law supported by s 122 was so constrained even if not supported by another head of constitutional power.
207 Gummow J noted that s 51(xxxi) applies both to indirect acquisitions as well as those which are direct. However, in his Honour's view, it does not apply to acquisitions (at 595):
" . . . in respect of which "just terms" is an incongruous notion."
208 That, for example, would be the case with native title because, as his Honour explained (at 613):
"[t]he characteristics of native title as recognised at common law include an inherent susceptibility to extinguishment or defeasance by the grant of freehold or of some lesser estate which is inconsistent with native title rights…"
209 The relevantly affected areas of land, having been freed of the Newcrest's rights to mine them, were to that extent "acquired" (at 634):
"This is not a case in the category considered in [Peverill] where what was in issue were rights derived purely from statute and of their very nature inherently susceptible to the variation or extinguishment which had come to pass."
210 Kirby J, in a separate judgment, agreed with the approach adopted by Gummow and Gaudron JJ. Fortunately, the present case does not call for a decision as to whether the Amending Act would have needed, even without s 23(1)(a) of the Self-Government Act, to conform to s 51(xxxi). But it may be noted that three of the present justices of the High Court have supported the view that the Territory power (s 122) is itself so qualified (see Newcrest Mining (WA) Ltd (supra)).
211 The question of what was "property" was further considered in Mewett and Commonwealth v WMC Resources Ltd (1998) 194 CLR 1 ("WMC Resources").
212 Mewett was a sequel to Georgiadis. The issue was whether a claim for personal injury of the kind recognised in Georgiadis survived the enactment of s 44 of the Safety, Rehabilitation and Compensation Act 1998 (Cth), notwithstanding that it was statute barred under State (or Territorial) limitation laws. Those laws allowed for discretionary extensions of time. The rights of the claimants had, therefore, existence unless the utility of cause of action had been ended by (final) refusal of an extension of time. That was held to be so even though, in Mewett, that respondent's cause of action itself, not merely his right to proceed to enforce it, was presumptively barred.
213 A different result followed in WMC Resources. The respondent, WMC, held exploration licences in the Timor Gap, granted pursuant to statute. A Treaty was then made with Indonesia. As a result, certain "blocks" were excised from the Permit area, by way of legislative amendments. No compensation was provided for or offered. Brennan CJ, Gaudron, McHugh and Gummow JJ found that s 51(xxxi) did not apply. Toohey and Kirby JJ dissented.
214 Brennan CJ considered that, as the Commonwealth had no property in the continental shelf, extinguishment of the permit was not an acquisition of property.
215 The mere fact that a property right, in the form of the permit, was extinguished did not, in his Honour's view, necessarily effect a s 51(xxxi) acquisition. The case turned, in his Honour's view, on the fact that no reciprocal liability had been assumed by the Commonwealth in granting the permit so that no benefit accrued to the Commonwealth from its extinguishment (at 17):
". . . where a law of the Commonwealth creates or authorises the creation of a right that does not impose on the Commonwealth a reciprocal liability, the mere extinguishment of the right effects no acquisition of the right by the Commonwealth."
216 His Honour considered Peverill to be a case where, though the Commonwealth agency was, by way of contrast, freed from a liability, it was not an "acquisition of property" (at 17):
"[i]f, by repeal or amendment of the statute, the right and the reciprocal duty are modified or extinguished, one of the indicia of acquisition would appear. But not an indicium of an acquisition of property. That is because a right so to compel the performance of a public law duty is not itself property, and the modification or extinguishment of such a right and duty is not an acquisition of property."
217 In his Honour's view Peverill turned on the nature of the right conferred by the relevant statute. The view that the rights conferred on Dr Peverill had not been "property" did not, however, attract majority support. The majority view seemed to be that the inherent character of the right conferred was such as to be inconsistent with any legitimate expectation of compensation for its modification or extinguishment.
218 Gaudron J reiterated her view, expressed in both Georgiadis and Peverill, that (at 35-6):
" . . . prima facie at least, a statutory right is inherently susceptible of statutory modification or extinguishment and no acquisition of property is effected by a law which simply modifies or extinguishes a statutory right that has no basis in the general law. That is because, ordinarily at least, a law of that kind does not confer an interest in property or any other benefit on the Commonwealth or any person; and, ordinarily at least, it does not constitute a law that is properly characterised as a law with respect to the acquisition of property."
219 In other words, her Honour supports the view that to determine whether s 51(xxxi) is attracted is not merely a question of whether there is acquisition of what can be described as a property right but also whether the right is such that its acquisition will attract s 51(xxxi). There are said to be "indicia" for and against that conclusion but their significance is not fully explained in her Honour's judgment. For example, whether all or only some of these indicia need to be present to exclude "just terms" is not addressed.
220 Her Honour gives some indication, in referring to the facts of the WMC Resources case, of an alternative basis for determining whether s 51(xxxi) is attracted (at 37):
"It may well be that if, after the discovery of petroleum an exploration permit were extinguished or modified with the consequence that the right to apply for a lease or production licence was destroyed or otherwise negated, that would constitute an acquisition for the purposes of s 51(xxxi) of the Constitution. In that situation, some benefit with respect to that petroleum would accrue to the Commonwealth."
221 And, further (at 38):
"In my view, the Consequential Provisions Act simply modified a statutory right which had no basis in the general law and which was inherently susceptible to that course and, thus, did not effect an acquisition of property."
222 Thus, her Honour's view was that not only was the "right" extinguished "inherently susceptible" of modification, but also that extinguishment was not attended by a corresponding benefit to the Commonwealth. That warranted the conclusion there was no relevant "acquisition".
223 McHugh J, however, was more prescriptive than Gaudron J. In referring to federally created statutory rights, his Honour pointed out that s 51(xxxi) is not a constitutional guarantee of just terms, rather it is a withdrawal of power to acquire property otherwise than on just terms. His Honour continued (at 49):
"If a federal law extinguishes a property right under the general law and as a result the Commonwealth obtains a corresponding benefit (no matter how small), the Commonwealth will ordinarily be taken to have acquired that property. If s 51(xxxi) is read as meaning: "No person shall be deprived of his or her property except on just terms", pension or welfare rights under a federal statute would probably be incapable of reduction or extinguishment. It would be surprising, however, if the Constitution required that Parliament, once it granted a pension or other gratuity, could not reduce or revoke the entitlement without paying compensation.
The ease with which the Commonwealth can avoid "contravening" s 51(xxxi) when acquiring a property right created by federal law further illustrates that it is a misnomer to describe s 51(xxxi) as a constitutional guarantee. To avoid "contravening" s 51(xxxi) it would seem that the Parliament need ensure only that the legislation creating the property right contains words to the following effect:
'Any property interest created by this Act endures only until varied or extinguished by subsequent federal legislation.'"
224 His Honour considered there were two categories of legislation affecting property rights, even those not "inherently susceptible" of revocation, which would not attract s 51(xxxi) (at 50):
"First, where a Commonwealth law merely varies or extinguishes a property interest, without any corresponding gain or benefit (no matter how slight or insubstantial) to the Commonwealth or some other person, s 51(xxxi) does not affect the content of the power authorising the law. Second, s 51(xxxi) does not withdraw power where the law can fairly be characterised as a law with respect to another s 51 head of power, rather than a law with respect to the acquisition of property within s 51(xxxi). This will be the case where, for example, the taking of property is an inevitable consequence of the exercise of another s 51 head of power or is a reasonably proportionate consequence of a breach of a law passed under that other head of power."
225 Neither of these categories, of course, is of assistance in the present case. The question raised in this case relates more to the applicability of the statement his Honour (a dissentient in Georgiadis) made concerning Peverill (at 55):
"Peverill is a clear authority for the proposition that, where the Parliament has created a vested right of property under a head of power such as s 51(xxiiiA) of the Constitution, it retains the power to amend, revoke or extinguish that right."
226 Gummow J agreed that s 51(xxxi) did not require just terms in this case (at 73):
"The point of present significance is that in some circumstances, of which the statutory rights in this case are an instance, the nature of the property may be such that its defeasance or abrogation does not occasion any acquisition in the constitutional sense."
227 His Honour did not proceed on the basis that there had been no acquisition, in the sense of the conferral of a reciprocal benefit upon the Commonwealth. Rather, it was the defeasible nature of the rights conferred which avoided the application of s 51(xxxi) (at 75):
" . . . the Permit suffered from the "congenital infirmity" that its scope and incidents were subject to the P(SL) Act in the form it might from time to time thereafter assume. Any proprietary rights which were created in respect of the Permit were liable to defeasance. By reason of their nature, upon such defeasance of those rights there would be no acquisition of property to which s 51(xxxi) applied."
228 His Honour thus advanced two reasons for concurrence with the majority: no benefit to the Commonwealth, hence no acquisition by it; and that the rights conferred were inherently subject to defeasance and so did not attract "just terms".
229 In the present case, the ACT clearly gained a financial benefit from revocation of the appellants' rights to compensation for pain and suffering. Thus, there was an "acquisition". This is not a case where there was no correlative benefit.
230 The nature of the right to compensation directed against the Territory was the same in nature, subject to the cap and some exclusionary provisions, as would have subsisted against the offender. The right to compensation itself was not "inherently defeasible". What, however, of the right to claim, instead of against the offender, against the Territory?
231 That right is statutory, as were the rights of the Commonwealth employees in Georgiadis and Mewett. Indeed, their case for "just terms" was somewhat weaker. The right to sue their employer at all (being the Commonwealth) only arose from federal statute law. In the present case the right to sue the offender(s) arose from common law. There is effected, by the CIC Act, a change of identity of the person liable to pay compensation for the criminal injury. The Territory is a party of additional resort (up to the cap and subject to discretionary exclusions).
232 The situation in this case is not relevantly dissimilar from Jenkins v Territory Insurance Office (supra).
233 In that case, the Northern Territory had, before the plaintiff in that case had suffered injury, barred resort to common law damages against motor vehicle tortfeasors. For those rights were substituted certain limited rights against the Territory Insurance Office (the "TIO"). Those rights were further amended on 1 September 2000 so as to limit them further. The question was whether the purported retrospective effect of the amendment was valid by reference to the NT equivalent in its Self-Government Actto s 23(1)(b) (acquisition on just terms) of the Self-Government Act.
234 Riley J rejected the TIO submission that Peverill and WMC Resources was fatal to the plaintiff's claim, saying (at [12]):
"In my opinion, contrary to the submissions of the defendant, the effect of s 40A and its predecessors was not to interfere with the right of the plaintiff to recover common law damages. That right was preserved. The effect of the section was to require that the existing right to common law damages "shall lie, and may be enforced, against the Office and not against the owner or driver of the motor vehicle". The right to common law damages remained but the identity of the person against whom the right may be enforced was changed . . . The effect of that amendment was to modify the pre-existing right of the plaintiff which derived from the common law. A corresponding benefit was provided to the defendant."
235 The redirection of the right, albeit modified by statute, was not changed in its character. Even if that right had been transformed into a statutory right, it did not thereby become a right "inherently susceptible" of abrogation without just terms. Nor could any legislative intent to create such a defeasible right be discerned.
236 That case was not, nor is this case, one where (at [24]):
" . . . the acquisition of property without just terms was necessary for the achievement of the objective of the head of power . . . That is not the case with this legislation. The acquisition of property without just terms is neither necessary to, nor characteristic of, legislation dealing with the subject matter of the scheme established under the . . . Act."
237 Those words are apt to the situation of these respondents. I appreciate that those who had a right to claim compensation but had yet to apply may, arguably, also have a right to claim by parity of reasoning but that does not fall for decision in these proceedings. I express no view as to that situation.
238 It is enough to find that an existing award is not the only precondition for the vesting of a right to compensation under the then CIC Act. Claimants who had accrued a right to be compensated remain, as did the claimants in Georgiadis and Mewett, entitled to the benefit of the rights vested in them at the time the CIC Act was amended.
239 I would dismiss the Australian Capital Territory's appeal with costs in each case.
I certify that the preceding one hundred and thirty-three (133) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Higgins.