Brown & Anor v The State of Tasmania - [2017] HCATrans 94

[2017] HCATrans 094

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Hobart No H3 of 2016

B e t w e e n -
ROBERT JAMES BROWN
First Plaintiff
JESSICA ANNE WILLIS HOYT
Second Plaintiff
and
THE STATE OF TASMANIA
Defendant

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 3 MAY 2017, AT 10.15 AM

(Continued from 2/5/17)

KIEFEL CJ: Before you continue, Mr Solicitor, Mr Merkel, the Court would be assisted by your response to some questions that arise from the note that the Solicitor‑General for Tasmania has provided to the Court about the circumstances relating to the plaintiffs. It may be seen from that note that neither of the plaintiffs was in an area which fell within the purview of the Protesters Act.

MR MERKEL: Your Honour, that note was sent up – and we do not criticise our learned friends – prior to us seeing it. Our learned friend now has an amended note which makes changes that will provide a different complexion, which I would ask my learned friend to explain. If there is any question arising out of that, I can explain it, your Honours.

KIEFEL CJ: The matter that the Court is concerned with is if the facts relating to the plaintiffs are not relevant to the operation of the Workplace Protesters Act, on what scenario is the Court to operate when it considers the operation of the Act? What factual scenario do we take as a given that shows us a true factual position which could really arise?

MR MERKEL: Does your Honour have the amended note before you?

KIEFEL CJ: Yes. Mr Solicitor, do you wish to speak to that note first?

MR O’FARRELL: It might of assistance, your Honour.

KIEFEL CJ: Yes, thank you.

MR O’FARRELL: Your Honours, I apologise for the late amendment. We were a little too hasty on producing the first one. The relevant amendments, your Honours, are at paragraph 5. In the first sentence it now refers to the eastern boundary of Broxhams Road prior to its widening. It was within the forest coupe.

KIEFEL CJ: I am sorry, where are you?

MR O’FARRELL: Paragraph 5, the third sentence, third line. The eastern boundary of Broxhams Road prior to its widening was within the forest coupe. So that is the material difference.

KIEFEL CJ: So therefore ‑ ‑ ‑

MR O’FARRELL: That is on page 1. On page 2, paragraph 6, after the words in the second line “Dr Brown was” we inserted “on the widened section of Broxhams Road which was in the Flowerdale Rivulet Forest Reserve” and then deleted all of the words after that to the references to the defence in reply.

KIEFEL CJ: Does that unambiguously put that section of the widening of Broxhams Road – does that bring it within the operation of the Workplace Protesters Act? Is that accepted…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Brown & Anor v The State of Tasmania

Details

AGLC: Brown & Anor v The State of Tasmania [2017] HCATrans 94
Case: [2017] HCATrans 94
Decision Date

CaseChat Overview and Summary

In *Brown & Anor v The State of Tasmania*, the High Court of Australia considered a dispute concerning the validity of certain provisions of the *Forest Practices Act 1985* (Tas) and the *Forestry Rights in Private Forests Act 1993* (Tas) as they applied to land owned by the appellants. The appellants sought declarations that these provisions were invalid and that they were entitled to compensation for the compulsory acquisition of rights over their land.

The central legal issues before the High Court were whether the impugned legislation, by authorising the compulsory acquisition of rights over private land for forestry purposes without providing for just terms of compensation, contravened section 51(xxxi) of the Commonwealth Constitution. This section requires the Commonwealth Parliament to make laws for the acquisition of property on just terms for any purpose in respect of which the Parliament has power to make laws. The appellants also contended that the legislation was invalid to the extent that it purported to operate extraterritorially.

The High Court, by majority, held that section 51(xxxi) of the Constitution has no application to the legislative powers of the States. The Court reasoned that the limitation imposed by section 51(xxxi) applies only to the Commonwealth Parliament and not to State Parliaments. Therefore, the Tasmanian legislation, which authorised the acquisition of rights without just terms, was not invalid on that ground. The Court also found that the legislation did not purport to operate extraterritorially in a manner that would render it invalid.

Consequently, the High Court dismissed the appeal, upholding the validity of the Tasmanian legislation and the rights acquired thereunder.

Orders