Scriven v Sargent

This most interesting decision of the Court of Appeal considered the effect of the Constitution, in particular s 51(xxxi) – power to acquire property on just terms – on the operation of State legislation. This matter arose from a decision of the District Court refusing the applicant’s request for leave to amend his notice of appeal.  The Applicant had previously been convicted in the Magistrates’ Court of contravening s 4.3.1 of the Integrated Planning Act 1997 (“IPA”) (carrying out “assessable development”, specifically in this matter the clearing of freehold land, without a permit).  Before the District Court the applicant sought to amend his notice of appeal to include the ground that the Vegetation Management and Other Legislation Amendment Act 2004, (VMOAA), which had amended the definition of “assessable development” such that it encapsulated his conduct, was invalid. The applicant contended that this invalidity arose because the amendment had been made pursuant to an agreement or an informal arrangement between Queensland and the Commonwealth, and it constituted an acquisition of property within the meaning of s 51(xxxi) on other than just terms. [3]. The primary judge considered the proposed amendment was futile and refused to grant the applicant’s request. It is this decision that was before the Court.

For the purposes of the appeal the Court assumed in favour of the defendant that there had been an “agreement” between the State and the Commonwealth and that State legislation which restricted clearing of vegetation conferred a benefit on the Commonwealth under its international obligations and, in particular, the commitments of the Kyoto Protocol.  It therefore confined its reasons to two issues: firstly, whether there had been an acquisition of property; and secondly, whether the challenge to the validity of the State legislation was arguable.

Acquisition of Property

Central to the applicant’s claim was that it was arguable that there had been an actual “acquisition of property by the Commonwealth, the State or another”. [16]. In addressing this issue, the Court first undertook an examination of the first instance decision of Emmett J in Spencer v Commonwealth (which subsequently made its way to the High Court in relation to the principles to be applied in granting summary judgment).  In that case it had been held that it was arguable that despite not creating any binding obligations on the Commonwealth, its ratification of the Kyoto Protocol and the consequent benefit it derived “in relation to its international obligations by reason of restrictions imposed on the clearing of native vegetation and that to achieve that benefit by other means could incur substantial expense” could amount to an acquisition of property by the Commonwealth, see discussion [17]–[19]. This decision, however, is somewhat countered by the High Court’s decision in JT International SA v Commonwealth where the majority of the Court concluded that the interest “acquired” must be a proprietary interest. [23]. Despite the High Court’s decisions in these cases and the apparent strength of the respondents’ arguments, see [20]–[24], however, the Court considered that, though it was difficult to see “how the Commonwealth might have obtained any proprietary interest relating to the applicant’s land” in the circumstances given the evidentially underdeveloped nature of the matter, the proposition was not so “manifestly untenable” that it would be futile to allow the applicant’s proposed amendments.  [25].

Challenge to Validity of State Legislation

Crucial to the applicant’s claim was that the State legislation which effected the alleged acquisition was arguably invalid because the applicant was not compensated for this acquisition. [26]. More specifically, the applicant contended that the VMAOO 2004 was invalid pursuant to s 51(xxxi), because the alleged acquisition “was carried out pursuant to an agreement or informal arrangement with the Commonwealth entered into for the purpose of avoiding … s 51(xxxi) of the Constitution.” [29]. The Court was wholly unconvinced by this argument, concluding that it was “established beyond argument … that State legislative power is not limited [by s 51(xxxi)]. [20]. In reaching this conclusion, the Court looked to decisions of both the High Court and Federal Court, in particular PJ Magennis v Commonwealth which had held that “the motives of the State and Commonwealth legislatures were “legally unimportant” and that if the legislatures acted within the law, “the intent of either or both to evade the constitutional limitation of Commonwealth legislative power is immaterial” in determining validity; [31]  and the subsequent affirmation of this principal in Pye v Renshaw. [36]–[37], [46].  As a consequence, the Court refused the application.  [48].