No just terms on 'acquisition'

No just terms on 'acquisition'


AUSTRALIAN landowners could be forgiven for thinking they have a right to compensation when governments, federal or State, impose environmental restrictions on private land for the public good.


AUSTRALIAN landowners could be forgiven for thinking they have a right to compensation when governments, federal or State, impose environmental restrictions on private land for the public good.

The Australian Constitution's section 51(xxxi) requires "just terms" for "acquisition" of property, with former chief justice Garfield Barwick hailing this as a "very great constitutional safeguard".

But Murdoch University law lecturer Lorraine Finlay, writing in the University of WA's Law Review, said this "very great constitutional safeguard" had some key limitations.

The first limitation was that the safeguard - one of the few express guarantees provided in the constitution concerning human rights - did not apply to the States.

Ms Finlay said this was confirmed by chief justice John Latham, in PJ Magennis Pty v Commonwealth, when he said the States could acquire property "on any terms which they may choose to provide in a statute, even though the terms are unjust".

Ms Finlay said there was also increased use of intergovernmental arrangements that saw the Commonwealth encouraging the States, often through use of tied funding, to implement policies that affected property rights and as a consequence avoid a just terms payment.

"As these are technically State-based laws they side-step the constitutional just terms guarantee," Ms Finlay said.

She said the second limitation of the constitutional safeguard was that locking away or "sterilising" private property for the public good did not constitute "acquisition".

The well-publicised cases of Peter Spencer, in New South Wales, and Peter Swift, in WA, fell into this category.

Mr Spencer had claimed his farm was no longer commercially viable due to the impact of NSW's native vegetation laws that controlled land management and native vegetation clearing.

Federal Court justice Debra Mortimer said while the NSW legislation had "fundamentally altered and impaired" Mr Spencer's bundle of rights through what he called a "sterilisation" there had been no "acquisition" by the State.

In Mr Swift's case, he was found not guilty of clearing 14 hectares without a permit only to find out four fifths of his 485 hectare Manjimup property was classified as environmentally sensitive areas (ESAS).

This meant if he grazed his cattle on the ESAS he could incur a $250,000 fine and a criminal conviction.

The Department of Environment Regulation (DER) monitors changes in vegetation through satellite and aerial photography.

While Mr Swift beat the illegal clearing charges after a lengthy and expensive court battle he was still responsible for a continuing mortgage on the property based on the original value of 485ha.

Ms Finlay said as a result of the ESA restrictions the value of Mr Swift's property had been destroyed, making its sale an "unlikely prospect, which highlighted the need for reform in this area".

The WA government refused Mr Swift's application for compensation of between $2.7 million and $2.9m for loss in value of the property, DER prosecution legal fees, expenses and lost wages, income and earnings stemming from the trial.

The late WA federal parliamentarian Don Randall said Mr Swift's case was "the worst case of injustice that I have seen in my role as a political representative in my sixteen and a half years in this federal parliament".

Mr Swift was not aware his land had ESAS because when the legislation was introduced in 2005 the State government had not notified landowners.

The Environmental Protection [Environmentally Sensitive Areas Notice 2005 (WA)] affected 98,042 parcels of land on some of WA's most productive farmland from Gingin to Esperance.

DER has said it did not know how many landowners were affected.

Some estimates have put the figure at 4000 to 6000.

The ESAS, determined by satellite maps, have not been field tested and were never open for public comment or review, with reports of inaccurate designations such as sandhills being declared as wetlands.

Ms Finlay said while there had been no prosecutions related to grazing an ESA the broad terms of the legislation meant property owners remained at risk of prosecution should the departmental practice ever change (which could potentially happen without notice and without parliamentary scrutiny).

Ms Finlay said the current regime provided property owners with no certainty or clarity regarding their obligations.

“If the legislation is not being enforced on its current terms then the obvious question is why such broad legislation is needed in the first place?” she said.

“Notwithstanding that this legislative framework effectively results in ESA land being locked away, unable to be used for regular farming activities, and often renders the land commercially unviable, it technically amounts to a restriction on land and not an acquisition.

“A broad-brush approach tends to be applied as there is no tangible cost that government departments or individual bureaucrats need to consider before they ‘sterilise’ large areas of land under the guise of environmental protection.

“Forcing the bureaucracy to actually consider the cost of these policies by imposing compulsory compensation mechanisms will lead to environmental policies that are more targeted and better focused, effectively prioritising areas of key environmental significance rather than the ‘super trawler’ approach to environmental protection.”

Ms Finlay said the argument was not that property rights should always be a given priority or supersede environmental protections.

“Rather, the focus should be on finding an appropriate balance, and on ensuring that compensation is provided to individual land-owners when they are obliged to sterilise their land for environmental purposes,” she said.

“Modern politics seems to require that compensation measures be provided for anybody who is likely to be left even slightly worse off by a change in government policy, to the point where the compensation measures to be introduced with the carbon tax were left in place even when the tax was repealed.

“In this environment an obvious question is why providing compensation for the significant restriction of property rights should be viewed any differently?”


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