Opinion Number. 1922

Subject

ACQUISITION OF PROPERTY VALIDITY OF CONTROL OF DEFENCE AREAS REGULATIONS: WHETHER PROHIBITION ON BUILDING OIL STORAGE OR LIMITS ON BUILDING HEIGHTS EFFECTS AN ACQUISITION OF PROPERTY: MEANING OF ‘ACQUISITION OF PROPERTY’: EFFECT OF REPEAL OF REGULATION-MAKING POWER ON REGULATIONS MADE UNDER THE POWER

Key Legislation

CONSTITUTION s 51(xxxi): CONTROL OF DEFENCE AREAS REGULATIONS regs 6, 7

Date
Client
Director

I refer to previous correspondence in which you sought my advice as to whether the Control of Defence Areas Regulations might be invalid because they are a law with respect to the acquisition of property and at the same time fail to satisfy the constitutional requirement of just terms.

(2)  I have come to the conclusion that neither regulation 6, prohibiting the building of oil storage, nor regulation 7, limiting the height of buildings, operates to effect an acquisition of any property or proprietary right by the Commonwealth or any other person. The question of providing for compensation is therefore one of policy, and not one of legal validity.

(3)  It must be recognized that a substantial argument to the contrary can be based upon the decisions of American Courts dealing with the question whether the use of air space adjacent to aerodromes amounts to a ‘taking’ of property within the meaning of the Fifth Amendment of the United States Constitution. There is very little authority in decisions of the High Court as to what amounts to an ‘acquisition’ within the meaning of our Constitution. Various Judges of the High Court have, from time to time, pointed out the distinction between the provisions of the Fifth Amendment and the provisions of our section 51(xxxi). I think the present case is one where the distinction becomes all-important for, while legislation depriving the owner of the full and unrestricted use of his property might operate as a ‘taking’ of property in the American sense, it does not seem to me to be an ‘acquisition’ for the purposes of our Constitution. However, the possibility that the legislation might be held by the High Court to amount to an acquisition cannot be dismissed.

(4)  The Department of Air has recently raised with me the question whether the Regulations are validly in operation in view of the fact that they were made in 1937, and that since then (in 1949) the regulation-making power in the Defence Act (section 124) has been amended. The general rule is that, where Regulations have been made under a power conferred by an Act, the repeal of the relevant section of the Act abrogates the Regulations.

[Vol. 39, p. 412]