Clunies-Ross v Commonwealth

Clunies-Ross v Commonwealth - [1984] HCA 65 - HCA 1984 case summary — Zoe

[5]

The Act is, as its name implies, concerned with the "acquisition" of land by the Commonwealth. The power of acquisition which it confers is a power to "acquire land for a public purpose" (s. 6). As a matter of language, a power to acquire land for a public purpose appears to us to be prima facie limited to an acquisition of land which is needed or which it is proposed to use, apply or preserve for the advancement or achievement of that purpose: see, generally, Attorney-General (Cth) v. Schmidt [1] and Halsbury's Laws of England, 4th ed., vol. 8, par. 50. Adapting words used in this Court in a different context, the "purpose of which [s. 6] speaks" is "the use to which" the land acquired is "to be put": see, as regards s. 26(a) of the Income Tax Assessment Act 1936 Cth, per Rich, Dixon and Evatt JJ., Evans v. Deputy Federal Commissioner of Taxation (S.A.) [2] and per Fullagar J., Pascoe v. Federal Commissioner of Taxation [3] . That view of the nature of the power conferred by the Act derives support from other provisions in it. Thus the long title, to which resort may properly be had in case of ambiguity for guidance on the intended scope of the Act (see, per Latham C.J., Birch v. Allen [4] ), describes the Act as an Act "to make provision for the Acquisition by the Commonwealth of Land required for Public Purposes " (emphasis added). Again, when the Act comes, in Pt III, to authorize preliminary or ancillary steps in relation to a proposed acquisition, such as the obtaining of information in relation to the relevant land, it confines the authorization to acts which are "for the purpose of ascertaining whether [the] land is suitable for a public purpose or of surveying or obtaining information in relation to [the] land which [the person authorized] considers suitable for such a purpose" (s. 16(1)) (emphasis added). On that prima facie construction, the provisions of the Act would fall short of enabling the Commonwealth compulsorily to acquire land in circumstances where it is not suggested that the Commonwealth's purpose relates to any planned use, application or preservation of the land itself or of any buildings thereon but is for the purpose of depriving the owner of his possession of the land with the motive of thereby achieving some consequential advantage which can properly be described as a "public purpose": cf. Jones v. The Commonwealth [5] .

[7]

Nor is there anything in the general subject-matter with which the Act deals which supports the view that the power to acquire land for a public purpose which the Act confers should be construed as extending to the acquisition of land not for purposes related to some need for or use of the land but to advance or achieve some more remote public purpose, however laudable. The powers of acquisition for a public purpose which the Act contains are conferred upon the Executive. They are exercisable by the Governor-General on the recommendation of a Minister. Section 5(1) of the Act defines "public purpose" as meaning "a purpose in respect of which the Parliament has power to make laws, and, in relation to land in a Territory, includes any purpose in relation to that Territory". If the power to acquire for a public purpose which the Act confers is construed as extending to purposes quite unconnected with any need for or future use of the land, the ministerial power thereby created would be surprisingly wide in that, subject only to monetary compensation, it would encompass the subjection of the citizen to the compulsory deprivation of his land, including his home, by executive fiat to achieve or advance any ulterior purpose which was a purpose in respect of which the Parliament has power to make laws or, in the case of land in a Territory, "any purpose in relation to that Territory". It is, in our view, unlikely that the Parliament would have intended to confer such a power other than by the use of clear words to that effect and subject to stringent and specially framed controls or safeguards against its abuse. Neither is to be found in the Act. As has been said, the language used is, prima facie, more appropriate to refer to a conventional power to acquire land because it is needed rather than to confer such an extraordinary power on the Executive. Apart from providing for disallowance by either House of Parliament (s. 12), the Act contains no special control or safeguard at all against executive abuse.

[8]

The main argument for giving to the relevant provisions of the Act the wide operation for which the Commonwealth contends is that the words "acquire for a public purpose", when read in the context of the abovementioned definition of "public purpose", reflect the words of s. 51(xxxi) of the Constitution which confer upon the Parliament power to make laws for the peace, order and good government of the Commonwealth with respect to " 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" (emphasis added). If, as the Commonwealth contends, that grant of legislative power should be construed as including the power to acquire property not for a purpose related to any need for or desired use of the property but for the purpose of depriving the owner of it and thereby indirectly achieving some purpose in respect of which the Parliament has power to make laws, there is plainly some force in the argument that the corresponding words should be given a similar connotation when used in the Act. The question whether the grant of power in s. 51(xxxi) of the Constitution should be so construed is not without difficulty and one can find in cases in this Court statements of high authority which would seem to be framed on the assumption that the legislative power conferred by par. (xxxi) should be confined to the making of laws with respect to acquisition of property for some purpose related to a need for or proposed use or application of the property to be acquired: see, e.g.,Andrews v. Howell [6] ; Jones v. The Commonwealth [7] ; Attorney-General (Cth) v. Schmidt [8] . It is, however, unnecessary for the purposes of the present case that we form or express any concluded view in relation to the extent of the legislative power in s. 51(xxxi). Even if the provisions of that sub-section be given the broad construction for which the Commonwealth contends, the relevant provisions of the Act should, in our view, be given the more confined meaning to which ordinary use of language and the subject-matter and other provisions of the Act point. The following considerations lead us to that conclusion.

[17]

By deed of 31 August 1978 between the plaintiff and the Commonwealth, the plaintiff conveyed to the Commonwealth all lands then owned by the plaintiff within the Territory other than the land on which the plaintiff's home is erected ("the retained land") and which is the land which the Commonwealth now wishes compulsorily to acquire. The deed contains a number of covenants by the Commonwealth including a covenant that the plaintiff, his family, heirs, licensees and guests should have and retain certain rights of access to and movement on and over the lands conveyed and other land previously conveyed to the Commonwealth, a covenant that the plaintiff and such others should have and retain, for the benefit of the retained land, the right and liberty to pass and repass along the foreshore adjacent to the lagoon frontage of the retained land and a covenant that the plaintiff would be entitled to be granted the right and liberty to construct and use a wharf on or from the foreshore adjacent to the retained land. The argument propounded in support of the plaintiff's claim of threatened breach of contract is founded upon allegations of fact in the statement of claim to the effect that the benefit of these covenants would be useless to him if the retained land were acquired by reason, inter alia, of the alleged ownership by the Commonwealth of all other land in the Territory. The argument is that, in these circumstances, an otherwise valid acquisition by the Commonwealth of the plaintiff's retained land, that is to say an acquisition for legitimate and genuine "public purposes" in accordance with the Act, would be in breach of the contract contained in the deed for the reason either that it would constitute a breach of an implied term of that contract or that it would involve the Commonwealth, by its own motion, bringing an end to the state of circumstances under which it was possible for the plaintiff to derive any practical advantage from the rights which the Commonwealth has covenanted that he should have: cf. per Lord Atkin, Southern Foundries (1926) Ltd. v. Shirlaw [18] .

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Before

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Judgment (46 paragraphs)

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