Crennan J
94.
extended the area of the Park prevented Newcrest from exploiting mining tenements which it held in that area but effected no acquisition of Newcrest's leasehold interests or any proprietary interests Newcrest held in the minerals. Nevertheless, it was held that an acquisition of property occurred because the interests of the Director in the Park and the Commonwealth in the minerals were held thereafter free of Newcrest's rights to conduct mining operations and to mine the minerals.
The substance and reality of proprietorship
Employing the language made familiar in those well-known authorities, the plaintiffs described the effect on them of the Packaging Act as reducing their proprietary rights to a "husk"[1], as taking the entire "substance"[2] of those rights, as effectively "sterilising"[3] them and stripping them of all their worth or value. Supported by the intervening tobacco interests, the plaintiffs further submitted that they were deprived of the "reality of proprietorship"[4] in their property.
In response, the Commonwealth contended that a diminution in the use or value of property is not the object of s 51(xxxi), since s 51(xxxi) is not concerned with the "general commercial and economic position occupied by traders"[5]. The restriction of "just terms" in s 51(xxxi) was said to be a protection against an acquisition of property in the sense of an expropriation or requisition of property[6]. Further, it was submitted that, even if the provisions of the Packaging Act might be characterised as a taking of the plaintiffs' pre-existing rights to use their property for advertising or promotional purposes, with a possible diminution in the value of the property, such a taking did not amount to an indirect acquisition of the plaintiffs' property.
- ↑ Dalziel (1944) 68 CLR 261 at 286 per Rich J.
- ↑ Banking Case (1948) 76 CLR 1 at 349 per Dixon J. See also Newcrest (1997) 190 CLR 513 at 595 per Gummow J.
- ↑ Newcrest (1997) 190 CLR 513 at 635 per Gummow J.
- ↑ Banking Case (1948) 76 CLR 1 at 349 per Dixon J.
- ↑ British Medical Association v The Commonwealth (1949) 79 CLR 201 at 270 per Dixon J; [1949] HCA 44.
- ↑ See Health Insurance Commission v Peverill (1994) 179 CLR 226 at 235 per Mason CJ, Deane and Gaudron JJ.
