-
8/14/2019 s.51(xxxi) Non Compulsory Acquisition of Land
1/10
-
8/14/2019 s.51(xxxi) Non Compulsory Acquisition of Land
2/10
Chapter 000X Page 2
Those who follow the trials of Mr Francis James Colosimo are
well aware how the judiciallyofficers disregard the RULE OF LAW and
hence I am using the public arena such as the Internetas an
alternative.
.
Personally I saw no use in the hunger strike of Peter Spencer as
his cause was really not known andso it was lost in his
protest.
.
It appeared to me that Kevin Rudd PM also did not appear the
least worried if Peter Spencer mightdie in the protest as after all
he was not some so called refugee pirating an Australian ship, if
youunderstand what I am on about.
.
It should be understood it makes not one of iota difference
which political party is in power becausein the end they will do
the same. The only way is to have a weapon of choice that so to say
will
blow them all of their socks and that is using the constitution
and voting power. Demand candidates
in elections to make a sworn statement to adhere to certain
conditions as provided for in theconstitution and failing to do so
you will not vote for them.
.
We only will need to do it once to place both major political
parties last and neither one of them getinto power and they will
learn a lesson they will never forget, one hopes.
.
As for Peter Spencer, knowing how rotten the legal system
operates he might just have toreconsider to use a different tactic
so as to instead of that he challenge the State it has to take
him
on. Again, not knowing what his case really is about I cannot
indicate what is the best way to goabout. It also underlines how
badly his campaign really went in regard of publicity.
.
Perhaps an issue is to consider if s.51(xxxi) itself is valid in
law.
QUOTE
(xxxi) the acquisition of property on just terms from any State
orperson for any purpose in respect of which the Parliament
haspower to make laws;
END QUOTE
.
Can it be held that the Framers of the Constitution albeit
entitled to and indeed instructed to Framea Constitution for the
federation had no powers to interfere with FEE SIMPLE rights as
this is a
prerogative grand by the Crown and not subject to legislation
other then the registration of theownership of the land under FEE
SIMPLE?
.
Hansard 25-1-1898 Constitution Convention Debates
Chapter 000X Page 2INSPECTOR-RIKATI about the BLACK HOLE in the
CONSTITUTION-DVD
A 1st edition limited special numbered book on Data DVD ISBN
978-0-9803712-6-0PLEASE NOTE: You may order books in the
INSPECTOR-RIKATI series by making a reservation, by fax
0011-61-3-94577209 or [email protected] See
also www.schorel-hlavka.com
mailto:[email protected]:[email protected]://www.schorel-hlavka.com/mailto:[email protected]://www.schorel-hlavka.com/
-
8/14/2019 s.51(xxxi) Non Compulsory Acquisition of Land
3/10
-
8/14/2019 s.51(xxxi) Non Compulsory Acquisition of Land
4/10
Chapter 000X Page 4
.Hansard 8-2-1898 Constitution Convention Debates
QUOTE Mr. BARTON.-Under a Constitution like this, the
withholding of a power from the
Commonwealth is a prohibition against the exercise of such a
power.
END QUOTE
.And I could go on and on about these matters but it should be
obviously clear that land ownership
by FEE SIMPLY has a special rights not associated with other
landholders rights and as such tohold that any Government nilly
willy can kick of a landholder who has FEE SIMPLE might be theerror
most people are making and is insufficiently argued.
.
Why indeed argue about your rights as landholder with FEE SIMPLE
that you can utilise the landas you deem fit and proper if the
government can merely kick you of and all your rights
evaporates.
.
The issue therefore is if the constitution in the first place
was validly enacted to allow for theCommonwealth and/or the States
(as it was State powers until the Commonwealth legislated on
thesubject) or in the end FEE SIMPLE cannot be interfered with
after all as the grand of the Crown ofFEE SIMPLE stands above any
legislative powers.
See also terms of FEE SIMPLE;
http://en.wikipedia.org/wiki/Fee_simple
The delegates of the Constitution Convention Debates were
instructed to create a constitution bytransferring such powers of
the colonies (now states) to the new federation that were deemed to
berequired for this. FEE SIMPLE ownership was not a legislative
power as such for purpose offederation and the Framers of the
Constitution themselves made known that property used by
theCommonwealth but not transferred by the State as to become
sovereign ownership of theCommonwealth would retain State
legislative powers for so far it didnt interfere with
thelegislative powers of the Commonwealth for the purpose the
property was acquired for.
Meaning that the Commonwealth only can acquire property for the
legislative powers it has and notfor any other purpose. The
purchase of land for water purposes was beyond its
constitutional
powers!
Also, where the commonwealth did not obtain ownership of the
land then it was merely a tenant ofthe property.
.
When John Howard as Prime Minister contemplated to sell Point
Nepean for $500 million dollars toprivate enterprise I made him
aware that selling the land to private enterprise would mean that
thecommonwealth still would retain to be the sovereign of the land
and would have to govern Point
Nepean as a territory, and it therefore needed to sell it back
or hand it back to State jurisdiction toget rid of it all together.
Upon this correspondence John Howard then cancelled any proposed
sale!
Chapter 000X Page 4INSPECTOR-RIKATI about the BLACK HOLE in the
CONSTITUTION-DVD
A 1st edition limited special numbered book on Data DVD ISBN
978-0-9803712-6-0PLEASE NOTE: You may order books in the
INSPECTOR-RIKATI series by making a reservation, by fax
0011-61-3-94577209 or [email protected] See
also www.schorel-hlavka.com
http://en.wikipedia.org/wiki/Fee_simplemailto:[email protected]:[email protected]://www.schorel-hlavka.com/http://en.wikipedia.org/wiki/Fee_simplemailto:[email protected]://www.schorel-hlavka.com/
-
8/14/2019 s.51(xxxi) Non Compulsory Acquisition of Land
5/10
Chapter 000X Page 5
.
Actually the same applies to the old Telstra land, that unless
it was first handed back to the States itstill remains Commonwealth
territory and no council rates or State taxes can be applied.
.
Anyhow, I view that to consider what is applicable you need to
first consider the constitutionalstructure and what is or isnt
applicable and then and only then look at the case of peter Spencer
andfor that matter anyone else so that when you do pursue
litigation you are not so to say left to handout dry but have a
real issue to canvas.
.
QUOTE HANSARD 25-1-1898 Constitution Convention Debates
(Official Record of theDebates of the National Australasian
Convention)
[start page 151]
Mr. BARTON (New South Wales).-I had it in my mind to suggest a
new sub-section to followsub-section (31), and to be called
sub-section (31A). Honorable members will notice that clause 86
provides that all lands and other property used in connexion
with any department of the publicservice, the control of which is
taken over by the Commonwealth, is to vest in the Commonwealth.But
that is only in respect of those departments which are taken over,
and it is only at the time oftaking over. Further needs are not
provided for in any way.
Mr. ISAACS.-Of these departments?
Mr. BARTON.-No, of the Commonwealth. The Commonwealth has no
power under theConstitution except as conferred by that clause.
Mr. ISAACS.-Will not sub-section (37) of clause 52 cover it?
Mr. BARTON.-We thought of that. The question is whether it is
sufficiently clear that thatprovision would give the Commonwealth
power to legislate for the resumption of lands.
Sir GEORGE TURNER.-There is another clause relating to the
acquisition of any part of theterritory of a state.
Mr. BARTON.-There is clause 53. Then there is clause 105, which
gives the Parliament of astate power to surrender any part of the
state to the Commonwealth. There is no express provisionin the
Constitution for the acquisition by the Commonwealth of any
property the acquisition of
which might become necessary. It has been suggested to me that
subsection (37) of clause 52 mightgive a sufficient power of
legislation for that purpose, but there is a doubt on the subject.
I wouldsuggest that the following new sub-section be inserted after
subsection (31):-
The acquisition of property on just terms from any state or
person for the purposes of theCommonwealth.
I would like to hear the views of honorable members as to
whether they think sub-section (37) issufficiently
comprehensive.
Chapter 000X Page 5INSPECTOR-RIKATI about the BLACK HOLE in the
CONSTITUTION-DVD
A 1st edition limited special numbered book on Data DVD ISBN
978-0-9803712-6-0PLEASE NOTE: You may order books in the
INSPECTOR-RIKATI series by making a reservation, by fax
0011-61-3-94577209 or [email protected] See
also www.schorel-hlavka.com
mailto:[email protected]:[email protected]://www.schorel-hlavka.com/mailto:[email protected]://www.schorel-hlavka.com/
-
8/14/2019 s.51(xxxi) Non Compulsory Acquisition of Land
6/10
Chapter 000X Page 6
The CHAIRMAN.-Does the honorable member move the new
sub-section? There must besomething before the Chair.
Mr. BARTON.-I will move itpro forma. I can withdraw it
afterwards if discussion shows that itshould be withdrawn.
Dr. QUICK (Victoria).-I was about to draw attention to the
matter to which the leader of theConvention has referred. In the
Constitutions of Canada, Switzerland, and the United States
express
power is given for the acquisition by the Federal Government of
lands for public purposes. It hasbeen suggested that the general
power given would cover this, but I do not think that that is so.
Atany rate, in the United States Constitution there is a provision
that the Congress shall have power toexercise authority over all
places purchased by the consent of the Legislature of the state in
whichthe same shall be for the erection of forts, magazines,
arsenals, dockyards, and other needful
business. Under the Constitution of Switzerland, on payment of a
reasonable indemnity, theConfederation has the right to use or
acquire drill grounds and buildings intended for military
purposes within the Cantons, together with the appurtenances
thereof. It is so also in Germany,where the Constitution says that
the right to construct fortresses within the territory of the
empireshall belong to the Emperor, who shall ask for the
appropriation of the means required for that
purpose, if not already included in the regular appropriation.
In Canada, the Constitution provides:-
The several provinces shall retain all their respective public
property not otherwise disposed of inthis Act, subject to the right
of Canada to resume any lands or public property required
forfortifications or for the defence of the country.
In these Constitutions there is a general section giving express
powers for the acquisition ofproperty which may be [start page 152]
required for the purposes of the Commonwealth. In thisBill there is
only a power to take over existing buildings.
Mr. BARTON.-And property at present in use.
Dr. QUICK.-Yes. There is no power to acquire the land of any
state, say, for the purposes of a
federal court-house or a federal custom-house.
Mr. ISAACS.-If that is necessary, for the purpose of the Federal
Judicature it is all included insub-section (37).
Dr. QUICK.-It is very doubtful whether, a general provision of
that kind would give this expresspower. Then there is no machinery
in that clause for determining the mode in which theCommonwealth is
to acquire the land of a state.
Mr. BARTON.-Clause 53 does not give a power for the acquisition
of land. It simply sets outthat authority shall be exercised over
it when it is acquired.
Dr. QUICK.-The Commonwealth would be crippled in its future
operations if express powerwere not given in the manner
suggested.
Mr. GLYNN. (South Australia).-I think that the new sub-section
should be inserted. I hadintended moving a similar amendment in
connexion with clause 53. Under sub-section (2) of thatclause, the
exclusive power is limited to any territory acquired by surrender
from the states, but no
power is directly given to acquire territory, or, having
acquired it, to exercise exclusive jurisdictionover it. According
to the American decisions, subsection (37) of clause 52 would not
cover what isrequired. In Sheppard's Constitutional Text
Bookreference is made to a provision in the AmericanConstitution
similar, to sub-section (37), and it is stated-
Chapter 000X Page 6INSPECTOR-RIKATI about the BLACK HOLE in the
CONSTITUTION-DVD
A 1st edition limited special numbered book on Data DVD ISBN
978-0-9803712-6-0PLEASE NOTE: You may order books in the
INSPECTOR-RIKATI series by making a reservation, by fax
0011-61-3-94577209 or [email protected] See
also www.schorel-hlavka.com
mailto:[email protected]:[email protected]://www.schorel-hlavka.com/mailto:[email protected]://www.schorel-hlavka.com/
-
8/14/2019 s.51(xxxi) Non Compulsory Acquisition of Land
7/10
Chapter 000X Page 7
This clause does not in terms grant any new power or enlarge or
diminish any of the powerselsewhere granted. It simply authorizes
Congress to make use of such particular means as may benecessary or
proper in order to execute the general powers conferred by the
Constitution upon theFederal Government or any department or
officer thereof.
There being no power given to acquire territory, clause 53 would
not cover the ground that issought to be covered by the proposed
new sub-section.
Sir GEORGE TURNER(Victoria).-I am not at all satisfied that it
would be advisable to insertthis new sub-section. It comes on us
somewhat as a surprise, and I would like to have further timeto
consider the effect of it. It might enable the Commonwealth to run
the states into enormousexpenditure. The leader of the Convention
will see that whatever property has to be acquired will
probably be acquired out of states money. The states have to
collect a certain amount of Customs-atleast the Commonwealth will
collect a certain amount of Customs, and the surplus will be
handedover to the states. If we increase these powers of purchasing
property we may enable theCommonwealth to incur enormous
expenditures. I think it is shown by some notes I have withregard
to Canada and other places that that has really been the result of
a power of this kind. If itwere so here the states Treasuries would
be the sufferers.
Mr. OCONNOR.-Their functions are much more extended.
Sir GEORGE TURNER.-I know that, but still the honorable member
will recognise thatwhere there is a power, the body having that
power would probably extend it to its utmost
limit. If they go a little further than we intended, or a little
beyond that strict reading of the
Act, how are we to stop them?
Mr. BARTON.-One answer to that is that if you give this power to
acquire landed property onjust terms, you would have the
compensation regulated by the provisions of an Act which
wouldprobably involve arbitration or the verdict of a jury. If, on
the other hand, you allowed theacquisition to be carried out by
contract, as it would have to be without a clause of this kind,
itwould be more expensive, and would entail a greater diminution of
the surplus returned to the state.
[start page 153]
Sir GEORGE TURNER.-I should object to the use of the words just
terms" on the groundthat they are not proper words to put into the
Constitution. We assume that the Federal
Parliament will act strictly on the lines of justice. But what I
desire to say is that this has come
upon us a surprise. We did not know that this amendment was to
be moved, and we have had
no opportunity of considering its effect. The object of the
leader of the Convention may be a
good one, but I would urge upon him to allow the matter to
remain in abeyance If he would
intimate that he would either recommit the clause or deal with
it on the report, and he would
in the meantime circulate the amendment he would give us an
opportunity of making
inquiries and ascertaining what the probable effect of the
amendment would be. We mightthen be able to meet his views. I would
urge him not to press the new sub-section at the
present time, because that would be rather unfair to us, seeing
that we have not had an
opportunity of considering it.
Mr. I.A. ISAACS (Victoria).-I would join with Sir George Turner
in asking that a little time begiven for the consideration of this
amendment. I would draw Mr. Barton's attention to the fact
thatacquisition would mean compulsory acquisition-that is,
acquisition by the Commonwealth againstthe will of the state, which
would reverse the principle. that has been adopted in the Bill that
a stateshould not be compelled to give up any portion of its
territory. Clause 105 provides that the
Chapter 000X Page 7INSPECTOR-RIKATI about the BLACK HOLE in the
CONSTITUTION-DVD
A 1st edition limited special numbered book on Data DVD ISBN
978-0-9803712-6-0PLEASE NOTE: You may order books in the
INSPECTOR-RIKATI series by making a reservation, by fax
0011-61-3-94577209 or [email protected] See
also www.schorel-hlavka.com
mailto:[email protected]:[email protected]://www.schorel-hlavka.com/mailto:[email protected]://www.schorel-hlavka.com/
-
8/14/2019 s.51(xxxi) Non Compulsory Acquisition of Land
8/10
Chapter 000X Page 8
Parliament of a state may at any time surrender any part of the
territory of that state to theCommonwealth.
Mr. BARTON.-That clause requires a separate Act for every
acquisition of territory by theCommonwealth.
Mr. ISAAC.-Yes. What I wish to point out is that we must be
careful that we do not in thisrough-and-ready fashion bring about
the reversals of principles already laid down in the Bill.
Clause 53 embodies a provision which exists in the United States
Constitution:-
The Parliament shall, subject to the provisions of this
Constitution, have exclusive powers to makelaws for the peace,
order, and good government of the Commonwealth with respect to the
followingmatters:-. . . . . . . . .
II. The government of any territory which by the surrender of
any state or states, and theacceptance of the Commonwealth, becomes
the seat of government of the Commonwealth, and theexercise of like
authority over all places acquired by the Commonwealth, with the
consent of thestate in which such places are situate, for the
construction of forts, magazines, arsenals, dockyards,quarantine
stations, or for any other purposes of general concern.
That provision makes the fullest recognition of the right of the
Commonwealth to acquire lands,with the consent of the states, for
any purpose of general concern. If we are to reverse that
position we ought not to do it hastily, and if it is the desire
of honorable members to insert this sub-section, the Bill must be
altered very materially in several respects. For these reasons, I
would askthat a little more time be given to us for the
consideration of the matter.
Mr. BARTON (New South Wales).-I shall be perfectly willing to
adopt the suggestion which hasbeen made upon the understanding that
at some future time I shall propose a sub-section similar tothis,
or the insertion of a new clause of similar effect in some other
part of the Bill. It has beensuggested to me that the sub-section
might be inserted now, but upon the understanding that I
shallassent to a recommittal if there is a desire on the part of
honorable members to consider the matter
further. The 2nd sub-section of clause 53 is not intended to
confer powers at all. The sub-section only gives to the Federal
Parliament exclusive powers of legislation in regard to the
government of territory which has been acquired by the
Commonwealth for military and
other purposes.
[start page 154]
Mr. ISAACS.-Taken in conjunction with sub-section (37), it would
put the federal authorityin the same position as the federal
authority of the United States occupies.
Mr. BARTON.-When you hand over such powers as are included in
the naval and military
defence of the Commonwealth, you unfairly and unwisely restrict
those powers, if you make itnecessary to procure separate
legislation for the acquisition of any lands required for the
purposesof defence, because you make the federal authority subject
to the dictation of the state authority inregard to each transfer.
This convinces me that power must be given to the federal authority
notto acquire lands compulsorily, but to legislate upon the subject
as I have suggested in the sub-
section.However, if honorable members prefer that the
sub-section should be withdrawn, I shallconsent to that course upon
the understanding to which I have already referred.
The sub-section was withdrawal.
Chapter 000X Page 8INSPECTOR-RIKATI about the BLACK HOLE in the
CONSTITUTION-DVD
A 1st edition limited special numbered book on Data DVD ISBN
978-0-9803712-6-0PLEASE NOTE: You may order books in the
INSPECTOR-RIKATI series by making a reservation, by fax
0011-61-3-94577209 or [email protected] See
also www.schorel-hlavka.com
mailto:[email protected]:[email protected]://www.schorel-hlavka.com/mailto:[email protected]://www.schorel-hlavka.com/
-
8/14/2019 s.51(xxxi) Non Compulsory Acquisition of Land
9/10
Chapter 000X Page 9
END QUOTE HANSARD 25-1-1898 Constitution Convention Debates
(Official Record of theDebates of the National Australasian
Convention)
http://en.wikipedia.org/wiki/Section_51(xxxi)_of_the_Australian_Constitution#Just_terms
QUOTE
Section 51(xxxi) of the Australian Constitution is a subsection
ofSection 51 of the AustralianConstitution providing that the
Commonwealth has the power to make laws with respect to
"theacquisition of property on just terms from any State or person
for any purpose in respect of whichthe Parliament has power to make
laws." It is both a power and a constitutional guarantee of
justcompensation forproperty rights contingent on its exercise.
The language of s 51(xxxi) was adapted from the final words of
theFifth Amendment to the United
States Constitution. Unlike the American provision, however, it
is primarily a grant ofCommonwealth law-making power. It is clear
that the requirement of "just terms" does not affectthe State
Parliaments. In Grace Bros Pty Ltd v The Commonwealth (1946)
Justice Dixon stated thatthe inclusion of the condition was to
"prevent arbitrary exercises of the power at the expense of aState
or a subject."
The interpretation of the terms "acquisition" and "just terms"
by theHigh Court of Australia havehad the effect, however, of
limiting its protection of property rights. Moreover, it operates
at anytime the Commonwealth makes a compulsory acquisition of
property. As such, it is a contingentguarantee rather than a
general constitutional right or freedom to enjoy property
rights.
The Commonwealth may only acquire property on just terms for a
"purpose in respect of which theParliament has power to make laws".
This means that every law supported by s 51(xxxi) must also
be supported by at least one additional legislative power.
The effect of the section was famously the subject of the iconic
Australian film The Castle.
[edit] Property
The High Court of Australia has taken a wide view of the concept
of "property". Several membersof the court took the opportunity to
consider the meaning of the term property in Minister of State
for the Army v Dalziel(1944). Justice Starke said the term
includes: "every species of valuable rightand interest including
real andpersonal property,incorporeal hereditamentssuch as rents
andservices,rights-of-way, rights ofprofit oruse in land of
another, and choses in action. JusticeMcTiernan confirmed the term
property extends to tangible and intangible property.
An example of the breadth of the concept of property in section
51(xxxi) is provided byBank ofNew South Wales v Commonwealth
(theBank Nationalisation Case). In that case, Federallegislation
contemplated the acquisition of private banks through vesting of
shares in private banksin the Commonwealth, and later the
appointment of directors by the Governor of theCommonwealth Bank.
Justice Dixon characterised the provisions as removing effective
controlover the property of the private banks. He concluded that
this was, in the essential sense, anacquisition of a proprietary
right.
Chapter 000X Page 9INSPECTOR-RIKATI about the BLACK HOLE in the
CONSTITUTION-DVD
A 1st edition limited special numbered book on Data DVD ISBN
978-0-9803712-6-0PLEASE NOTE: You may order books in the
INSPECTOR-RIKATI series by making a reservation, by fax
0011-61-3-94577209 or [email protected] See
also www.schorel-hlavka.com
http://en.wikipedia.org/wiki/Section_51(xxxi)_of_the_Australian_Constitution#Just_termshttp://en.wikipedia.org/wiki/Section_51_of_the_Australian_Constitutionhttp://en.wikipedia.org/wiki/Section_51_of_the_Australian_Constitutionhttp://en.wikipedia.org/wiki/Parliament_of_Australiahttp://en.wikipedia.org/wiki/States_and_territories_of_Australiahttp://en.wikipedia.org/wiki/Property_righthttp://en.wikipedia.org/wiki/Property_righthttp://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitutionhttp://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitutionhttp://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitutionhttp://en.wikipedia.org/wiki/1946http://en.wikipedia.org/wiki/Owen_Dixonhttp://en.wikipedia.org/wiki/High_Court_of_Australiahttp://en.wikipedia.org/wiki/High_Court_of_Australiahttp://en.wikipedia.org/wiki/The_Castle_(movie)http://en.wikipedia.org/w/index.php?title=Section_51(xxxi)_of_the_Australian_Constitution&action=edit§ion=1http://en.wikipedia.org/w/index.php?title=Section_51(xxxi)_of_the_Australian_Constitution&action=edit§ion=1http://en.wikipedia.org/wiki/High_Court_of_Australiahttp://en.wikipedia.org/wiki/1944http://en.wikipedia.org/wiki/Hayden_Starkehttp://en.wikipedia.org/wiki/Real_propertyhttp://en.wikipedia.org/wiki/Personal_propertyhttp://en.wikipedia.org/wiki/Personal_propertyhttp://en.wikipedia.org/wiki/Property_lawhttp://en.wikipedia.org/wiki/Property_lawhttp://en.wikipedia.org/wiki/Rentinghttp://en.wikipedia.org/wiki/Service_(economics)http://en.wikipedia.org/wiki/Easementhttp://en.wikipedia.org/wiki/Easementhttp://en.wikipedia.org/wiki/Profit_(real_estate)http://en.wikipedia.org/wiki/Use_(law)http://en.wikipedia.org/wiki/Chose_(English_law)http://en.wikipedia.org/wiki/Edward_McTiernanhttp://en.wikipedia.org/wiki/Commonwealth_Bankmailto:[email protected]:[email protected]://www.schorel-hlavka.com/http://en.wikipedia.org/wiki/Section_51(xxxi)_of_the_Australian_Constitution#Just_termshttp://en.wikipedia.org/wiki/Section_51_of_the_Australian_Constitutionhttp://en.wikipedia.org/wiki/Section_51_of_the_Australian_Constitutionhttp://en.wikipedia.org/wiki/Parliament_of_Australiahttp://en.wikipedia.org/wiki/States_and_territories_of_Australiahttp://en.wikipedia.org/wiki/Property_righthttp://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitutionhttp://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitutionhttp://en.wikipedia.org/wiki/1946http://en.wikipedia.org/wiki/Owen_Dixonhttp://en.wikipedia.org/wiki/High_Court_of_Australiahttp://en.wikipedia.org/wiki/The_Castle_(movie)http://en.wikipedia.org/w/index.php?title=Section_51(xxxi)_of_the_Australian_Constitution&action=edit§ion=1http://en.wikipedia.org/wiki/High_Court_of_Australiahttp://en.wikipedia.org/wiki/1944http://en.wikipedia.org/wiki/Hayden_Starkehttp://en.wikipedia.org/wiki/Real_propertyhttp://en.wikipedia.org/wiki/Personal_propertyhttp://en.wikipedia.org/wiki/Property_lawhttp://en.wikipedia.org/wiki/Rentinghttp://en.wikipedia.org/wiki/Service_(economics)http://en.wikipedia.org/wiki/Easementhttp://en.wikipedia.org/wiki/Profit_(real_estate)http://en.wikipedia.org/wiki/Use_(law)http://en.wikipedia.org/wiki/Chose_(English_law)http://en.wikipedia.org/wiki/Edward_McTiernanhttp://en.wikipedia.org/wiki/Commonwealth_Bankmailto:[email protected]://www.schorel-hlavka.com/
-
8/14/2019 s.51(xxxi) Non Compulsory Acquisition of Land
10/10
Chapter 000X Page 10
While statutory licences have sometimes been equated with
proprietary interests, the removal ofrights enjoyed under a
statutory licence does not typically constitute an acquisition of
propertywithin section 51(xxxi), as licence conditions are
inherently susceptible to change.
[edit] Acquisition
For the purposes of section 51(xxxi), property must have been
acquired by somebody, and theacquisition must be for a Commonwealth
purpose. This is in contrast to theFifth Amendment,where the
destination does not matter - it is enough that the holder of
property has been deprived ofit.
[edit] Just terms
Typically, a determination of just terms based on the market
value of the property at the time ofacquisition will be sufficient
to satisfy the requirement of just terms. Unlike the "just
compensation"requirement in the Fifth Amendment, however, "just
terms" imports no equivalence ofmarketvalue. The arrangements
offered must be "fair", or such that a legislature could reasonably
regardthem as "fair". However, this judgment of "fairness" must
take account of all the interests affected,not just those of the
dispossessed owner.
The requirement of "just terms" does not necessarily require
that a compensation package bepresented as part of the acquisition
scheme. It is sufficient that the scheme provides
adequateprocedures for determining fair compensation. However, the
Court may scrutinise such proceduresclosely to ensure their
adequacy.
There may be some acquisitions of property to which section
51(xxxi) does not apply.
Section 51(xxxi) is an exception to the norm for interpretation
of the subsections of section 51, thatone grant of power cannot be
used to "read down" another. In this case, however, the Court will
notallow another grant of power to be read so broadly as to
circumvent the specific limitation to the
power granted by section 51(xxxi).
END QUOTE
Gerrit
.
Mr G. H. Schorel-Hlavka
.
27-2-2010
Chapter 000X Page 10INSPECTOR-RIKATI about the BLACK HOLE in the
CONSTITUTION-DVD
A 1st edition limited special numbered book on Data DVD ISBN
978-0-9803712-6-0PLEASE NOTE: You may order books in the
INSPECTOR-RIKATI series by making a reservation, by fax
0011-61-3-94577209 or [email protected] See
also www.schorel-hlavka.com
http://en.wikipedia.org/w/index.php?title=Section_51(xxxi)_of_the_Australian_Constitution&action=edit§ion=2http://en.wikipedia.org/w/index.php?title=Section_51(xxxi)_of_the_Australian_Constitution&action=edit§ion=2http://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitutionhttp://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitutionhttp://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitutionhttp://en.wikipedia.org/w/index.php?title=Section_51(xxxi)_of_the_Australian_Constitution&action=edit§ion=3http://en.wikipedia.org/w/index.php?title=Section_51(xxxi)_of_the_Australian_Constitution&action=edit§ion=3http://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitutionhttp://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitutionhttp://en.wikipedia.org/wiki/Market_valuehttp://en.wikipedia.org/wiki/Market_valuehttp://en.wikipedia.org/wiki/Market_valuehttp://en.wikipedia.org/wiki/Section_51_of_the_Australian_Constitutionmailto:[email protected]:[email protected]://www.schorel-hlavka.com/http://en.wikipedia.org/w/index.php?title=Section_51(xxxi)_of_the_Australian_Constitution&action=edit§ion=2http://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitutionhttp://en.wikipedia.org/w/index.php?title=Section_51(xxxi)_of_the_Australian_Constitution&action=edit§ion=3http://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitutionhttp://en.wikipedia.org/wiki/Market_valuehttp://en.wikipedia.org/wiki/Market_valuehttp://en.wikipedia.org/wiki/Section_51_of_the_Australian_Constitutionmailto:[email protected]://www.schorel-hlavka.com/
