Scriven v Sargent[2013] QDC 216

[2013] QDC 216

DISTRICT COURT OF QUEENSLAND

CIVIL JURISDICTION

JUDGE ROBIN QC

No 2 of 2011

SAM CHESTER SCRIVENAppellant

and

CAMERON JAMES SARGENTRespondent

BRISBANE

1.11 PM, MONDAY, 20 MAY 2013

JUDGMENT

HIS HONOUR:  The immediate question for the court is whether an amendment ought to be allowed to Mr Scriven's notice of appeal against his conviction for carrying out assessable development in the form of removal of vegetation on his property near Roma without a development permit.

He was self‑represented in the early stages of the appeal. He has been permitted by Judge Andrews to amend to complain of the severity of the substantial penalty imposed by the Magistrate.

When that amendment was permitted, there was deferred until a later time, which turned out to be today, determination of whether further amendment should be permitted.

The point of that would be to make a point which I think MrScriven attempted to make at first instance that section 4.3.1 of the Integrated Planning Act 1997 (IPA) on which the conviction was based is invalid by reason of section 51 (xxxi) of the Constitution which, of course, precludes acquisition of property by the Commonwealth except on just terms.

The explanation for the State law may be assumed to lie in arrangements between Commonwealth and State authorities to do with assisting the Commonwealth to meet targets it committed itself to, under international arrangements, the Kyoto Protocol, in particular. If vegetation is preserved intact, that is said to have the consequence of authorising greater carbon emissions than might otherwise be permissible.

It is said by Mr King for Mr Scriven that the benefits or advantages to the Commonwealth are such that there is an acquisition of property by it. There would seem to be little difficulty in the way of establishing that there were no just terms provided because Mr Scriven obtained no benefit whatever nor any compensation whatever in return for what, from his point of view and the points of view of many, might be substantial sterilisation of his land from the point of view of his doing what he wanted to with it. That was said to be  by way of the clearing of land in drought times to facilitate the feeding of stock.

In my view, the amendment sought has to be refused because it would be futile. The inescapable reason for that is that section 51 (xxxi)  does not strike at State laws. It is enough to refer to the now venerable Pye v Renshaw (1951) 84 CLR 58 in the joint judgment at page 78 referring to Magenis [1949]80 CLR 382 where it was held against the dissent of Dixon and McTiernan JJ that a Commonwealth Act about or closer settlement scheme after World War 2 was one with respect to the acquisition of property and it did not provide for just terms and it was, therefore, in excess of the power conferred by section 51(xxxi) of the Constitution and void. The passage goes on and I quote, "It was said to follow that the agreement executed in pursuance of the Act was not binding on the Commonwealth and because the agreement was not binding on the Commonwealth, it was held that there was nothing upon which the State Act No. 6 of 1946, which purported to approve and ratify the agreement, could operate. That Act was treated as simply inoperative. The position thus reached could not, of course, affect the validity of any State legislation authorising the acquisition of land because State powers are in no way affected by section 51 (xxxi). As Latham CJ said, "There is no doubt as to the power of the State Parliament to provide for compensation for land resumed upon any basis which it thinks proper”. It was said, however, that under the State legislation as it then stood, provisions limiting the amount of compensation to the value as at 10th February1942 applied only to resumptions 'for the purpose of the scheme contained in the agreement', and that there was in law no agreement. The State could, therefore, proceed with the resumption of the plaintiff's land, but only under the general provisions of section 4 of the Closer Settlement (Amendment) Act 1907, that is, at a value assessed by a board and subject to appeal to the Land and Valuation Court. Webb J put it thus: “The State legislate is inoperative so far as it was enacted to give effect to the agreement. Properly construed, it contemplates, I think, a valid agreement ."  

Further on, at 79 their Honours say, "As has already been pointed out, the legislative power of the State is not affected by section 51 (xxxi) of the Constitution. If a State Act provides for the resumption of land on terms which are thought not to be just, that is of no consequence legally it cannot affect in any way the validity of the Act or of what is done under the Act and the effect of Act No. 14 of 1950 is to make it perfectly clear that all relevant legislation of the Parliament of New South Wales is intended to take effect unconditioned by way of Commonwealth legislation and irrespective of the existence of any agreement between the Commonwealth and the State of New South Wales. To adopt the language of Webb J already quoted, it cannot now be correct to say that, properly construed, the State Acts contemplate the existence of a valid agreement or of any agreement or scheme. There is no possible ground of attack on the validity of this legislation,  there is no ground whatever for saying that it is inoperative and all courts are bound to give effect to it according to its tenor."

At pages 81 to 82, the joint reasons for judgment refer to the allegation that the acquisition was made by arrangement with the Commonwealth, et cetera. That took matters nowhere. The relevant paragraph concluded, "It is impossible to maintain with that validity of the resumption by the State can be affected if it chooses to cooperate with the Commonwealth in the matter of closer settlement or to accept financial assistance."  Although decades have elapsed since the 1951 case, I'm not persuaded there has been any change in the law. What MrKing relies on is the dissenting view of Heydon J in ICM Agricultural Pty Ltd v the Commonwealth Australia (2009) 240 CLR 141. In that case, as paragraph 257 shows Heydon J did declare invalid legislation of New South Wales which, by substituting new licences to take water for old, impaired the rights of licence holders under 1912 legislation. This was all done with the cooperation and assistance of the Commonwealth in programmes it was pursuing to improve matters in relation to water in the Murray‑Darling Basin or part of it.

MrKing conceded he is unable to point to any other instance of State legislation being declared invalid or even being considered as being at risk of being declared invalid. With respect to Heydon J, as he then was, his views do not dissuade me from the firm conviction that the amendment would be futile.

MrKing says that some support may be found in paragraph 47 in the leading judgment in ICM Agricultural. Paragraph 46 expressed the view that the legislative power of the Commonwealth conferred by the grants power in section 96 and section 51 (xxxvi) "does not extend to the grant of financial assistance to a State on terms and conditions requiring the State to acquire property on other than just terms."  That was said not to be the end of the matter. From paragraph 47, I quote, "It is necessary now to consider whether the replacement of the plaintiff's bore licences issued under the 1912 Act involved the acquisition of the property other than on just terms within the meaning of section 51 (xxxvi)." 

I am firmly of the view that notwithstanding the benefits that the Commonwealth may have set out to achieve by the arrangements underlying relevant amendments to the Queensland Vegetation Management legislation, which is ultimately the source of development being identified which becomes assessable under the IPA, there's no acquisition of property by the Commonwealth.

It is clear from cases such as Bone v Mothershaw, our Court of Appeal, based on the Tasmanian Dams’ case in this respect, that there's no acquisition of property in a context such as the present by any level of government in the sterilisation of a landowner's asset.

Another High Court authority of importance today is Spencer v The Commonwealth (2010) 241 CLR 118. That was a case of summary dismissal of a proceeding on the basis of lack of prospects of success. It concerned the New South Wales equivalent of the very scheme involving cooperation between State and Commonwealth which is of concern here, or the New South Wales version of it.

Notwithstanding what I understood to be MrKing's assertion that there was some risk of State legislation being invalidated, I don't detect that myself in the reasons for judgment.

The proceedings were instituted against the Commonwealth in the Federal Court in relation to restrictions imposed on the clearing of vegetation on Mr Spencer's farm. He alleged, it is said, "that the Commonwealth laws which authorised those agreements were made for the purpose of acquiring property other than on just terms and were invalid by reason of section 51 (xxxi)."  

It seems that pursuant to suggestions of Gummow J, New South Wales might have been joined. Certainly the High Court case involved appearances for New South Wales and three other States, as well as for the New South Wales Farmers Association.

I fail to detect any suggestion of risk to New South Wales legislation. For what it's worth, MrKing's argument in the High Court refers to "abuse by the Commonwealth and to the desirability of discovery of correspondence between it and New South Wales for the purpose of confirming that the State legislation conferred substantial pecuniary and proprietary benefits on the Commonwealth." at (121).

MrKing has informed me that one of the respondent's authorities, Alcock v The Commonwealth Australia [2013] FCAFC 36 is on appeal to the High Court.

…

HIS HONOUR:  The Full Court of the Federal Court's reasons, which I'm satisfied state the position for the moment, read in paragraph 82, "The postulation of an arrangement of some sort between the Commonwealth and Victoria did not supply any factor which might engage the operation of section 51 (xxxi) in a way which would affect the authority of the Victorian Parliament or the validity of the Marine Parks Act. Even if there were some arrangement (formal or informal) between the Commonwealth and Victoria which was reflected in the Marine Parks Act that would not signify that Victorian legislation dealing with areas where Victoria had title property and full legislative capacity was invalid,  as section 51 (xxxi) of the Constitution is not addressed directly to power of a State Parliament."

The passage quoted from Pye v Renshaw is reflected in the way in which the respondent presented its argument today. Quoting the final submissions, the constitutional challenge was said to be untenable for three related reasons:  (1) section 4.3.11 of the IPA which created the offence for which the appellant was convicted was not conditioned on the existence of any Commonwealth agreement or law; (2) section 51 (xxxi) of the Constitution does not invalidate State law and can have no impact on State laws that are not conditioned on the validity of a Commonwealth agreement or law; and (3) in any event, section 4.3.1 of the IPA did not constitute an acquisition of property.

In my opinion, it's inconceivable given the present state of the authorities that those contentions would not prevail and, in these circumstances, I refuse the amendment. For what it may be worth, I am of the view that striking out a claim as hopeless, under the General Steel test as sought in Spencer, unsuccessfully, names different conditions from an application to the court, like Mr Scriven’s, to amend a proceedings to add a new claim. I understand it was sought with a view to changing the parameters of this proceeding in such a way as to give possibilities of removal into the High Court. No doubt, if my views are wrong,  there are other ways of getting to that same point.

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