Clunies-Ross v Commonwealth

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] .

1. (1961) 105 C.L.R. 361, at pp. 372-373. 2. (1936) 55 C.L.R. 80, at p. 99. 3. (1956) 30 A.L.J.R. 402, at p. 404. 4. (1942) 65 C.L.R. 621, at pp. 625-626. 5. (1963) 109 C.L.R. 475, at p. 483.

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.

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.

1. (1941) 65 C.L.R. 255, at pp. 281-282. 2. (1963) 109 C.L.R., at p. 483. 3. (1961) 105 C.L.R., at p. 372.

First, the power to acquire property for a public purpose which the Act confers is not conferred merely in pursuance of the legislative power contained in s. 51(xxxi). It is also conferred in pursuance of s. 122 of the Constitution in that, in relation to land in a Territory, the purpose for which the land may be acquired includes "any purpose in relation to that Territory". In so far as it includes a power to acquire land by agreement, it is conferred pursuant to either other specific constitutional grants of legislative power or the "incidental" power (s. 51(xxxix)): see Trade Practices Commission v. Tooth & Co. Ltd. [9] . The fact that that power of acquisition is not conferred merely in pursuance of the provisions of s. 51(xxxi) weakens the strength of any presumption that the words used in the Act should be construed conformably with the corresponding words used in that paragraph.

Secondly, an executive power of acquisition of land for a public purpose is different in nature to a legislative power of a national Parliament to make laws with respect to the acquisition of land for a purpose in respect of which the Parliament has power to make laws: see Magna Carta, c. 29 (25 Edw. I c. 29); Blackstone's Commentaries, 5th ed. (1773), vol. 1, pp. 138-139; Burmah Oil Co. Ltd. v. Lord Advocate [10] . An executive power to deprive a citizen of his property by compulsory acquisition should be construed as being confined within the scope of what is granted by the clear meaning or necessary intendment of the words by which it is conferred: see, per Lord Cottenham L.C., Webb v. Manchester and Leeds Railway Co. [11] and per Lord Westbury L.C., Simpson v. South Staffordshire Waterworks Co. [12] . In contrast, the plenary grant of legislative power contained in s. 51(xxxi) has assumed the status of a constitutional guarantee of just terms (Minister of State for the Army v. Dalziel [13] ) and is to be given the liberal construction appropriate to such a constitutional provision: see Attorney-General (Cth) v. Schmidt [14] .

1. [1965] A.C. 75, at p. 115. 2. (1839) 4 My. & Cr. 116, at p. 120 [ 41 E.R. 46, at pp. 47-48]. 3. (1865) 34 L.J. Ch. 380, at p. 387. 4. (1944) 68 C.L.R. 261, at pp. 276, 284-285. 5. (1961) 105 C.L.R., at pp. 370-372.

Thirdly, the scope of the executive power of compulsory acquisition which the Act confers was plainly intended to be narrower, in a number of respects, than the scope of the legislative power with respect to acquisition in s. 51(xxxi). For one thing, s. 51(xxxi) refers to "property" generally whereas the powers conferred by the Act are confined to land which is, of its nature, likely to have characteristics that designate it as being "required" or "suitable" for an identified public purpose. For another, the power conferred by the Act is restricted to acquisition by the Commonwealth whereas it would seem to be established that the legislative power conferred by s. 51(xxxi) extends at least to some acquisition by entities other than the Commonwealth: see, e.g., McClintock v. The Commonwealth [15] ; P. J. Magennis Pty. Ltd. v. The Commonwealth [16] ; Trade Practices Commission v. Tooth & Co. Ltd. [17] .

1. (1947) 75 C.L.R. 1, at pp. 23, 36. 2. (1949) 80 C.L.R. 382, at p. 401. 3. (1979) 142 C.L.R., at pp. 424, 427, 451-452.

All these considerations combine, in our view, so to weaken any presumption that references to the acquiring or acquisition of land for a public purpose in the Act must be construed conformably with whatever meaning is to be given to the words "acquisition of property for any purpose " in s. 51(xxxi) that it is unavailing to overcome any more limited connotation which those words would bear as a matter of ordinary construction.

If follows that the power compulsorily to acquire land for a public purpose which is conferred by the Act is limited to a power to acquire land for some purpose related to a need for or proposed use (be it active or passive) or application of the land to be acquired. It does not extend to the acquisition of land merely for the purpose of depriving the owner of it and thereby achieving some purpose in respect of which the Parliament has power to make laws or, in relation to land in a Territory, a purpose in relation to that Territory. That being so, the demurrer must be overruled in so far as it relates to the plaintiff's claim that the proposed acquisition of his land is not authorized by the Act. We turn to consider the demurrer to so much of the plaintiff's claim as is based upon threatened breach of contract.

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] .

The simple answer to the plaintiff's claim founded on breach of contract is that it is impossible to read into the deed an implied term precluding future acquisition of the retained land by the Commonwealth or to identify a binding consensual foundation of the contract between the plaintiff and the Commonwealth to the effect that the Commonwealth would neither make nor execute its laws in the future so as to deprive the plaintiff of his home or to procure his exclusion from the Territory. The contract between the plaintiff and the Commonwealth was made in the context of the law and the rights which were conferred upon the plaintiff by its terms existed under and were subject to the ordinary operation of Commonwealth laws and to the exercise of executive powers under such laws. Under the law, the plaintiff could conceivably lose his land or the practical opportunity of remaining in the Territory in a variety of ways. One of those ways was that his land might be acquired by the Commonwealth pursuant to the legislative powers which it enjoys under the Constitution including by exercise of the power to acquire land for a relevant public purpose which the Act confers. While it is true that the rights which the deed preserved to the plaintiff might, as a practical matter, be of substantial benefit to him only for so long as he desired or was able to remain in possession of the retained land, there is nothing in the deed which had the effect of contractually binding the Commonwealth to make or apply the law in a manner that would leave unaffected the plaintiff's rights of ownership or occupation of that land. It is unnecessary to consider whether, if the Commonwealth Executive had purported to covenant to that effect, the covenant would have been valid or enforceable.

We would allow the demurrer to the amended statement of claim to the extent to which it relates to the claim of threatened breach of contract. Otherwise the demurrer should be overruled.

We have been at pains to stress in this judgment that the political or social desirability or otherwise of the deprivation of the plaintiff of his home is irrelevant to the proceedings in this Court. The questions for this Court on the demurrer are questions of law. It would be an abdication of the duty of this Court under the Constitution if we were to determine the important and general question of law which the demurrer has raised according to whether we personally agreed or disagreed with the political and social objectives which the Minister sought to achieve. That general question, translated into human terms, is whether a Commonwealth Act conferring a power to acquire land for a public purpose entitles the Executive to deprive any citizen of his home not because of a need of it for any active or passive purpose but so as to achieve some more remote purpose of the Commonwealth by forcing him to leave the locality in which he lives. As a matter of constitutional duty, that question must be considered objectively and answered in this Court as a question of law and not as a matter to be determined by reference to the political or social merits of the particular case. We have so considered and determined it.

The case concerns the exercise of eminent domain, the acquisition of property by the sovereign for public purposes. Eminent domain is recognized as a necessary feature of government, and in many modern constitutions is qualified by provisions for just compensation. The statutory provisions here provide for just compensation.

The plaintiff claims that an acquisition of his house and land on Cocos (Keeling) Islands would be a breach of his contract with the Commonwealth and should be restrained. The record shows what is in any event notorious, that under a species of colonial feudalism the Islands were held by the plaintiff's ancestors and the plaintiff's title to the house and land are the relics of that feudalism. I agree with the majority that the plaintiff's claim that his contract should prevail against the statutory power of acquisition cannot succeed.

The Lands Acquisition Act 1955 ("the Act"), an Act "to make provision for the Acquisition by the Commonwealth of Land required for Public Purposes" empowers the Commonwealth to "acquire land for a public purpose" (s. 6). Section 51(xxxi) of the Constitution provides constitutional validity for the Act, as well as s. 122 in this case. The question is whether "public purpose" is to be read narrowly or not.

Section 10 of the Act enables the Governor-General, on the recommendation of the Minister, to authorize the acquisition of land by the Commonwealth by compulsory process for a public purpose approved by the Governor-General. Upon publication of a notice of the authorization in the Gazette , the land is vested in the Commonwealth.

By s. 12 the Minister must cause a copy of every such notice to be laid before each House of the Parliament within fourteen sitting days of that House after the publication. Within thirty days either House may resolve that the notice shall be void and of no effect, and the land shall be deemed not to have been vested in the Commonwealth.

The executive action of the Minister is thus subject to disallowance by each House. Either House may upset the acquisition if it considers there is no public purpose, or disapproves it or for any other reason. Although the validity of such involvement by a legislative chamber in the exercise of executive power is open to doubt (see Immigration and Naturalization Service v. Chadha [19] ), it has not so far been challenged. Disallowance was used by the Senate in 1973, so it is not a dead letter.

Briefly the plaintiff claims that the purpose for which the land is intended to be acquired is: (a) to bring about the exclusion of the plaintiff and his family from the Cocos (Keeling) Islands and to force him and his family into exile from their home therein; (b) by so doing, to prevent the plaintiff and his family from voting in and seeking to influence the voting of other persons in any expression of an Act of Self-Determination by the inhabitants of the Cocos (Keeling) Islands pursuant to the policies of the General Assembly of the United Nations as spelled out in the Declaration on the Granting of Independence to Colonial Countries and Peoples contained in General Assembly Resolution 1514 (xv) of 14 December 1960 or otherwise.

The plaintiff claims that this is not a public purpose.

There has been no recommendation to the Governor-General for acquisition of the land and therefore no statement of an approved public purpose by the Governor-General. The defendant Commonwealth and the Ministers state in the defence that the purpose is "the political, social and economic advancement of the peoples of the Territory of Cocos (Keeling) Islands" and that is the basis upon which they intend to acquire the land. They demur however, on the ground that, even if the claim by the plaintiff about purpose were correct, this would not entitle the plaintiff to succeed. It is notorious that for the purposes of the Act of Self-Determination the islanders on the Cocos (Keeling) Islands had requested that the plaintiff be kept off the Islands and the Court was informed that before the demurrer was argued, the Act of Self-Determination by the islanders had occurred. In my opinion this point of the demurrer is hypothetical, premature (as no recommendation has been made to the Governor-General), and now moot (the Act of Self-Determination has occurred) and should not be decided. However as the majority has dealt with it, I will set out my views, assuming, as is necessary on a demurrer, that the facts are as alleged by Mr. Clunies-Ross.

The majority says that the political and social desirability or otherwise of the exclusion of the plaintiff and his family from the Territory of Cocos (Keeling) Islands is irrelevant to the proceedings in this Court. I disagree. Of course, capricious acquisition of a citizen's home would not be "for a public purpose". That is not the case here. If political and social considerations indicate a rational public purpose for the acquisition of the land, then under the Act, the Commonwealth is entitled to acquire it with just compensation.

The United Nations Declaration referred to by the plaintiff stated that the General Assembly was conscious "of the need for the creation of conditions of stability and well-being and peaceful and friendly relations based on respect for the principles of equal rights and self-determination of all peoples" and recognized "that the peoples of the world ardently desire the end of colonialism in all its manifestations". The Assembly therefore "[s]olemnly proclaim the necessity of bringing to a speedy and unconditional end colonialism in all its forms and manifestations" and declared that "[a]ll peoples have the right to self-determination [to] freely determine their political status and freely pursue their economic, social and cultural development" and further that "[i]mmediate steps shall be taken to transfer all powers to the peoples of [dependent] territories, without any conditions or reservations, in accordance with their freely expressed will and desire".

Pursuant to the Declaration, a United Nations Mission visited the Cocos (Keeling) Islands in 1974. It reported that "in taking note of Mr. Clunies-Ross' concept of self-government, [the Mission] deplores the fact that it does not allow for the true and free expression of the wishes of the population of Home Island". The Mission stated that it "had the impression that he [Mr. Clunies-Ross] was not prepared to abandon the anachronistic, feudal relationship between himself and the Cocos Malay community" and that it was aware "that the breaking down of a relationship of a feudal nature will be a difficult task". The Visiting Mission considered that the Australian Government "should be encouraged to intensify its efforts to proceed by stages with the task of separating the community from the Estate" (pars. 206-207).

A further Visiting Mission reported in 1980 that the Cocos Malay community had: "become more independent [of Mr. Clunies-Ross] in both its political and social life. Nevertheless, some degree of interdependence, in particular in the economic field, still exists between the two owing to the fact that Mr. Clunies-Ross retains a prominent place in the life of the community, thereby creating uneasiness on the Islands. The view was expressed that this interdependence should be discontinued. The Mission is of the opinion that the administering Power should take necessary steps to deal with this matter effectively" (par. 201).

If, as claimed, the purpose of acquisition by the Commonwealth and the Ministers would be to take the former feudal manor, to remove the former feudal overlord and his family, in order that they should not participate in and influence an Act of Self-Determination by the inhabitants of the Island, I find no basis on which the Court can properly conclude that it would not be for a public purpose, irrespective of all political and social considerations which might persuade the Ministers and the Governor-General that it would be for a public purpose. It would be open to the defendant to take the view that if a free Act of Self-Determination was to be achieved, it would be necessary to exclude the plaintiff and his family.

It was open to the defendants to decide that acquisition of the former feudal manor to extinguish the taint of feudalism and colonialism from an island territory, was for a public purpose. The history of eminent domain shows that a classic public purpose for acquisition of land has been to eradicate feudal incidents and relics. Whether the Court agrees with the political and social considerations which lead to such an opinion is not relevant. The merits of the opinion are for the Government, not the Court, unless it would be irrational to regard the acquisition as one for a public purpose.

Acquisition for public use has been dealt with recently by the Supreme Court of the United States of America, in Hawaii Housing Authority v. Midkiff [20] . To reduce the perceived social and economic evils of a land oligopoly traceable to the early high chiefs of the Hawaiian Islands, the Hawaii Legislature enacted a law which provided for acquisition of land from the great landowners and transfer to others in order to reduce the concentration of land ownership. It included provisions for negotiation, arbitration and compensation.

The law was challenged on the ground that it violated the "public use" requirement of the United States Constitution Fifth Amendment, " nor shall private property be taken for public use, without just compensation". The challenge was rejected. The Court held that the requirement of "public use" is coterminous with the scope of a sovereign's police powers (its general power to regulate) and that where the exercise of the eminent domain power is rationally related to a conceivable public purpose, a compensated taking is not prohibited by the "public use" clause. The judgment of the Court (delivered by O'Connor J. stated [21] ):

On this basis, we have no trouble concluding that the Hawaii Act is constitutional. The people of Hawaii have attempted, much as the settlers of the original 13 colonies did, to reduce the perceived social and economic evils of a land oligopoly traceable to their monarchs. Regulating oligopoly and the evils associated with it is a classic exercise of a State's police powers. 1. (1984) 81 Law. Ed. (2d), at p. 198.

The Supreme Court reversed the judgment of the Court of Appeals which had mistakenly read the Supreme Court's earlier decisions on "public use" cases as "requiring that government possess and use property at some point during a taking" [22] . The Supreme Court said that it had "long ago rejected any literal requirement that condemned property be put into use for the general public" and further "government does not itself have to use property to legitimate the taking; it is only the taking's purpose, and not its mechanics, that must pass scrutiny under the Public Use Clause" [23] .

1. (1984) 81 Law. Ed. (2d), at p. 199. 2. (1984) 81 Law. Ed. (2d), at p. 99.

There is no warrant for a gloss on the Australian Act that public purpose is confined to some planned use, application, or preservation of the land or buildings. Even if "public purpose" should be read as "public use", the United States cases show that acquisition for public use extends to spiritual and aesthetic as well as material purposes. In Berman v. Parker [24] , in a unanimous judgment the Supreme Court held:

Miserable and disreputable housing conditions may do more than spread disease and crime and immorality. They may also suffocate the spirit by reducing the people who live there to the status of cattle. They may indeed make living an almost insufferable burden. They may also be an ugly sore, a blight on the community which robs it of charm, which makes it a place from which men turn. The misery of housing may despoil a community as an open sewer may ruin a river.

The concept of the public welfare is broad and inclusive The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled.

1. (1954) 348 U.S. 26, at pp. 32-33 [99 Law. Ed. 27, at pp. 37-38].

It runs against generally accepted principles of interpretation to read narrowly a wide phrase such as "for a public purpose". Acquisition of land round an airport or a defence installation, not to use, but so that no one may use it, is for a public purpose. Acquisition of a derelict site, not to use it, but to remove an eyesore or to prevent danger, is for a public purpose. Acquisition of a wilderness area, specifically so no one should use and therefore despoil it, is for a public purpose. The spirit and enjoyment of life of the Island people can be diminished not only by a derelict site or pollution but by the continued presence of the former feudal overlord, in the former feudal manor. It is open to the Government to take a view that the acquisition of the land and house to prevent that continuance is for a public purpose.

In argument on the question of public purpose, the plaintiff's counsel referred to what I said in Ansett Transport Industries (Operations) Pty. Ltd. v. The Commonwealth [25] , about a constitutionally implied freedom of movement. Such an implied freedom is not absolute. On this point the case is not only hypothetical and moot but it does not set out the facts necessary to enable a proper consideration of the application of that freedom in the circumstances.