Australian Republic Constitution
Australian Flag News Get Involved! Events Resources
Main Menu
ACM Home
About ACM
ACM News
Anthems
Afghan Court Martial
Book Reviews
The Commonwealth
Contact ACM
Convenor's Column
Constitutional Monarchies and Republics Compared
Constitutional Monarchy in the Muslim World
Cost of Republicanism to the Taxpayer
Crowned Republic
Diamond Jubilee 2012
Event News
Federalism and the Mining Tax
Fiji
Flag: Keep The Flag
Governor of New South Wales
Head of State
Keating-Turnbull Republic: The Nineties
Knights & Dames
Latest News and Opinions
Links
Mate for a Head of State
Media and monarchy
Nile Inquiry
Opinion Polling
Orthodoxy and Monarchy
People's Republic?
Plebiscites
Prince Andrew
Prince Charles
Prince Harry
Prince Philip
Prince William & Catherine
Prince William In Australia
Prince William: The Early Years
Racist Republic?
Reserve Powers of the Crown
Resources
Return the Governor
Royal Commissions
Royal Finances
Self Funded Monarchy
Royal Yacht Britannia
The Succession
2020 Summit
Join our Mailing List
See our selection of videos from across the world:-
ACM Videos
AussieCrownTV - ACM's own TV channel:
Aussie Crown TV
Follow ACM on Facebook:
Facebook
Self Funded Monarchy
Self Funded Monarchy
Royal Finances
Royal Finances
Diamond Jubilee 2012
Diamond Jubilee 2012
Head of State
Prince Philip
Prince Philip
Special Caribbean Report: Crown & Commonwealth

      Crown

The Commonwealth
The Commonwealth
Prince Harry
Prince Harry
Prince Andrew
Prince Andrew
Knights & Dames
Knights & Dames
The King's Speech: read the book, see the film.

The King's Speech

Watch the 2010 Neville Bonner Oration: Tony Abbott.
Tony Abbott
Nile Inquiry
Royal Commissions
Royal Commissions
Opinion Polls

 

Plebiscites
Plebiscites
2020 Summit
2020 Summit
Orthodoxy & Monarchy
Orthodoxy & Monarchy
Afghan Court Martial
Constitutional Monarchy in the Muslim World
Constitutional Monarchy in the Muslim World
Mate for a Head of State
Mate for a Head of State
Racist Republic?
Racist Republic
A People's Republic?
A People's republic?
Keating Turnbull Republic: The Nineties
The Keating Turnbull Republic
Crowned Republic
Crowned Republic
Polls
Republicans' Best Asset?
Is David Flint ( National Convenor since 1998) the republicans best asset, as some claim?
ACM Home arrow Convenor's Column arrow Without compensation: Governments take properties

Without compensation: Governments take properties Print E-mail
Written by Professor David Flint AM   
Thursday, 01 April 2010
An increasingly important issue in the nation is the extent to which State governments can confiscate property without paying fair compensation.  The Federal government cannot do this. This is because the Constitution only allows compulsory acquisition on “just terms” - and then only for a purpose “in respect of which the Parliament has power to make laws.(section 51(xxx1)”  ( The Federal Parliament only has those powers granted in the Constitution.)

But can the Federal government do this indirectly through a State government? State constitutions have no similar protection. 

A related issue is where a government places such obstacles on the use of a property that the owner is denied an income. Is that an expropriation which should be compensated?

Image



... Peter Spencer...




 

This was the claim that the farmer Peter Spencer made when his land was declared to be part of a carbon sink to assist the Commonwealth to comply with carbon emission restrictions under the Kyoto Protocol. At the time the government would not sign the Protocol, but wanted to show it was reducing our carbon emissions.

After a series of unsuccessful legal actions Mr. Spencer’s hunger strike brought the situation imposed on him and thousands of farmers before the nation. The media took notice.

(Incidentally, his case, Spencer v. Commonwealth of Australia,  is being argued in the High Court on a pro bono basis by barrister Peter King, a founder of ACM and always a strong constitutional monarchist. Until 2004 he was the member for Wentworth in the House of Representatives.)

A political solution apart, Mr Spencer’s only answer may lie in the Federal Constitution. That all depends on the High Court saying the Commonwealth cannot do indirectly what it cannot do directly.

 

 






.....Cape York ....







 




We have recently seen another example of the effective confiscation or at least neutralisation of property in Queensland.

This is in the Wild Rivers Act, 2005 introduced by the Queensland Government  to prevent rivers on the Cape York Peninsula being damaged by farming and tourism. The Leader of the Opposition Tony Abbott is supporting  a private member’s bill introduced into the Federal Parliament to overturn the state law.
 He has told ABC Radio's AM program (12/1) the Wild Rivers Act is unfair on Aboriginal people living in the region.



 

"It's about locking up the land in ways which deny Aboriginal people their legitimate right to use it for their own benefit," he said.  He told Parliament that the legislation was “the result of a deal between the green activists of Brisbane and the Beattie and the Bligh Labor governments of Queensland.”

Noel Pearson, the indigenous leader agrees and says the deal was to secure city seats for Labor with Green preferences. He told Alan Jones on 2GB (1/4) that some people expect Aboriginal people to live as they lived hundreds of years ago. He said that if they did not develop their land they would be held back to a life of dependency and despair.

Alan Jones pointed out the Cape York Peninsula is the size of Victoria and massively undeveloped. The Wild Rivers Act stops development one kilometre beside any river or water course.

ACM of course has no position on the federal or state legislation. However as a general principle it is surely fundamental that where the government takes land or significantly restricts its use, fair compensation should be paid.





...the race power....






The federal bill introduced by Senator Scullion, the Wild Rivers (Environmental Management) Bill, 2010, which would require the agreement, the Aboriginal traditional owners of the land.

The bill declares that it is the intention of the Parliament that if enacted, it protect the rights of traditional owners of native title land within wild river areas to own, use, develop and control that land.

It relies particularly on the race power in Section 51(xxvi) of the Constitution.  This provides that the Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: -
...

(xxvi.) The people of any race for whom it is deemed necessary to make special laws.

Until 1967, there was one exception – the Aboriginal race in any State. This was the most significant part of the referendum that year which had nothing to do with voting rights or citizenship both of which were already enjoyed by the Aboriginal people. 

Introduced by Senator Scullion, the bill is now before the Senate Legal and Constitutional Affairs Committee. In a submission to the Committee constitutional lawyer Professor George Williams records his opinion that the bill if enacted would be a valid exercise of this power.

Although I do not always agree with my esteemed republican colleague, I do so on this occasion.








 

 
< Prev   Next >
ROYAL VISIT 2014

Image

The Book Depository
Image
Image
Prince William: The Early Years
Prince Charles

Prince Charles

Constitutional Monarchies & Republics Compared

Image


Defend the Constitution and Flag
Australian Election Watch

10th Anniversary Neville Bonner Oration

11th Anniversary and Appeal

Crowned Republic 

   Keep The Australian Flag
Return the Governor to Government House
The Succession
The Succession
The Governor of New South Wales
Governor of New South Wales
Fiji
Fijian soldier
Media and Monarchy
Media and Monarchy
Royal Yacht Britannia
Royal Yacht Britannia
Republic Audit: Costs of Republic
Republic Audit: Costs of Republic
Reserve Powers of the Crown
Events
October 2017 November 2017
Su Mo Tu We Th Fr Sa
Week 40 1 2 3 4 5 6 7
Week 41 8 9 10 11 12 13 14
Week 42 15 16 17 18 19 20 21
Week 43 22 23 24 25 26 27 28
Week 44 29 30 31
Latest ACM News: -