Smith v ANL Ltd

[2000] HCA 58

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

STEPHEN PAUL SMITH   APPELLANT

AND

ANL LIMITED  RESPONDENT

Smith v ANL Limited [2000] HCA 58
16 November 2000
P56/1999

ORDER

1.        Amend the style of the respondent to "ANL Limited".

2.        Appeal allowed with costs.

3.Set aside orders of the Full Court of the Supreme Court of Western Australia made on 18 November 1998 and, in lieu thereof, order that:

(a)the appeal to that Court from the orders of Registrar Powell dated 9 September 1996 be allowed with costs, those orders be set aside and the application to the Registrar be dismissed with costs;

(b)the appeal to that Court from the orders of Ipp J dated 27 August 1996 be allowed with costs and question 2 of the questions of law ordered to be tried by Owen J on 17 June 1996 as preliminary questions of law be answered: "Section 54 of the Seafarers Rehabilitation and Compensation Act 1992 (Cth) is invalid in its application to the causes of action pleaded by the plaintiff";

(c)costs of the trial of the preliminary questions, including any reserved costs, be the plaintiff's costs in the action.

On appeal from the Supreme Court of Western Australia

Representation:

P J Hanks QC with N J Mullany for the appellant (instructed by Slater & Gordon)

G H Murphy for the respondent (instructed by Cocks Macnish)

Intervener:

D M J Bennett QC, Solicitor-General of the Commonwealth with G R Kennett intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Smith v ANL Limited

Constitutional law (Cth) – Acquisition of property on just terms – Seaman injured on ship during course of employment – Legislation barred existing common law rights to bring action and allowed an action to be brought within six-month period – Whether a law with respect to the acquisition of property on just terms.

Workers' compensation – Seafarers' compensation – Provisions in lieu of entitlement to damages at common law – Whether Act validly abolished entitlement – Whether abolition constituted acquisition of property on just terms.

Constitution, s 51(xxxi).
Seafarers Rehabilitation and Compensation Act 1992 (Cth), s 54.
Seafarers Rehabilitation and Compensation (Transitional Provisions and Consequential Amendments) Act 1992 (Cth), s 13.

1. GLEESON CJ.   In December 1988 the appellant was injured whilst working as a merchant seaman in the employment of the respondent.  He claims that the respondent became liable to him in damages, for breach of contract (in failing to provide a safe system of work), and in negligence.  In November 1994, the appellant sued the respondent in Western Australia.  In the meantime, the Australian Parliament, as part of a new legislative scheme to compensate injured seafarers, enacted legislation which, if valid, would deprive the appellant of the common law rights asserted in his action.  The relevant statutory provisions are
   s 54 of the Seafarers Rehabilitation and Compensation Act 1992 (Cth) ("the Rehabilitation Act"), and s 13 of the Seafarers Rehabilitation and Compensation (Transitional Provisions and Consequential Amendments) Act 1992 (Cth) ("the Transitional Provisions Act"). The issue presently before the Court is whether those provisions are invalid because, in their application to the appellant, they are laws with respect to the acquisition of property other than on just terms as required by s 51 (xxxi) of the Constitution.

2. The facts of the case, and the terms of the relevant legislation, are set out in the reasons for judgment of Gaudron and Gummow JJ.

3. In certain respects the case is similar to Georgiadis v Australian and Overseas Telecommunications Corporation[1], which was followed and applied in The Commonwealth v Mewett[2]. Those cases establish that a right of action for damages for personal injury of the kind which, it is assumed, was vested in the appellant immediately before the enactment of the Rehabilitation Act and the Transitional Provisions Act, is "property" within the meaning of s 51 (xxxi). They also establish that a law which extinguishes such a right of action may bear the character of a law with respect to the acquisition of property. In Georgiadis[3] it was said that "'acquisition' in s 51 (xxxi) extends to the extinguishment of a vested cause of action, at least where the extinguishment results in a direct benefit or financial gain … and the cause of action is one that arises under the general law." It was also held, as a matter of characterisation, that a law, which effected such an extinguishment in the wider context of legislation altering entitlements to compensation for certain work-related injuries, was a law of the kind to which s 51 (xxxi) refers.

   [1](1994) 179 CLR 297.

   [2](1997) 191 CLR 471.

   [3](1994) 179 CLR 297 at 305 per Mason CJ, Deane and Gaudron JJ.

4. The respondent argued that the present case is materially different from Georgiadis. The combined effect of s 54 of the Rehabilitation Act and s 13 of the Transitional Provisions Act was not to bring about an immediate extinguishment of the appellant's right of action. Rather, it was to impose upon the appellant a qualified removal of his right to bring such an action (s 54), the qualification being that the appellant had the right to bring such an action within a further six months after the commencement of the legislation (s 13). In practical terms, in place of the limitation period that would otherwise have operated, the appellant had a period of six months in which to commence his proceedings for common law damages, and if he did not bring them within that time, he lost his right to bring the action. The Rehabilitation Act provides a statutory scheme of compensation for injured seafarers.

5. In respect of a cause of action which had accrued before 24 June 1993, the legislation provided that a claim could be brought within six months after that date, but not thereafter.  This, it was said, was no more than a modification of the limitation period that would otherwise apply, and was procedural rather than substantive in effect[4].  The legislation, it was contended, did not take away the appellant's right of action; at most it diminished its value by requiring that it be exercised, if it were to be exercised at all, within six months.  Correspondingly, the only benefit conferred upon the respondent was an assurance that, if it were to be sued at all, that had to occur within six months.

   [4]cf Maxwell v Murphy (1957) 96 CLR 261.

6. It is true that, in Georgiadis[5], significance was attached to the fact that the law there in question did not merely modify the limitation period applicable to causes of action sustained by Commonwealth employees before the new scheme of compensation came into effect, but immediately extinguished such causes of action. What must be addressed in the present case is the operation of s 51 (xxxi) in relation to legislation having the effect already described.

   [5](1994) 179 CLR 297 at 307.

7. The legislation did not operate immediately to divest the appellant of his right of action against the respondent. However, it had the effect that, after the expiration of a further six months, he did not have a right to bring an action against the respondent for damages for a work-related injury. Section 54 removed the right of action. Section 13 provided that, despite s 54, the respondent had a right to bring such an action within a further six months. The combined legal effect of the two provisions, which were intended to be read together, was that the appellant's pre-existing common law right was modified; and a corresponding benefit was conferred on the respondent. Once it is accepted, as the authorities establish, that a chose in action is a species of property to which s 51 (xxxi) applies, and that the constitutional guarantee is not to be narrowly confined, then modification of a right to bring an action, in circumstances where a corresponding advantage accrues to the party against whom action may be brought, would ordinarily involve an acquisition of property. If it were the case that only an extinguishment of a chose in action would amount to acquisition, then the constitutional guarantee would be easily circumvented. The distinction between procedural and substantive consequences of limitation provisions may be significant in other areas, but it does not control the application of s 51 (xxxi). If it did, a guarantee protecting rights of private property could be rendered worthless by the adoption of a drafting technique that would produce, for the citizen affected, a result having no practical difference from the result of extinguishment. Furthermore, to provide by legislation that a person who has an accrued right of action, which could previously have been exercised within a longer period, may only bring the action within a substantially shorter period, is to affect the right in a manner which will ordinarily cause disadvantage to one party and a corresponding advantage to another.

8. The extent of the disadvantage may be a material matter in deciding whether just terms have been provided.  The circumstance that the appellant could have avoided the adverse consequences of the legislation by taking action within six months does not, in my view, mean that there was no acquisition.  The appellant did not consent to the modification of his right.  It is, however, a matter to be taken into account in considering whether, in the circumstances, there was a failure to provide just terms.  So is the fact that the legislative scheme provided certain other benefits in place of the common law rights which it affected.  However, it is the position of the appellant, not other injured seafarers considered collectively, or the public generally, that is to be addressed.  As Brennan J said of the corresponding legislation in Georgiadis[6]:

   "If a worker is entitled at common law to a lump sum award in damages, it is not within the power of the Commonwealth under s 51 (xxxi) to limit the amount which it or a statutory authority may have to pay the worker or to delay the worker's entitlement to payment. In determining the issue of just terms, the Court does not attempt a balancing of the interests of the dispossessed owner against the interests of the community at large. The purpose of the guarantee of just terms is to ensure that the owners of property compulsorily acquired by government presumably in the interests of the community at large are not required to sacrifice their property for less than its worth. Unless it be shown that what is gained is full compensation for what is lost, the terms cannot be found to be just."

   [6](1994) 179 CLR 297 at 310-311.

9. The guarantee contained in s 51 (xxxi) is there to protect private property. It prevents expropriation of the property of individual citizens, without adequate compensation, even where such expropriation may be intended to serve a wider public interest. A government may be satisfied that it can use the assets of some citizens better than they can; but if it wants to acquire those assets in reliance upon the power given by s 51 (xxxi) it must pay for them, or in some other way provide just terms of acquisition.

10. In the present case it is not shown that what was gained by the appellant was full compensation for what was lost, even allowing that, in considering what was lost, the period of six months to bring action should be taken into account.

11. I agree with the orders proposed by Gaudron and Gummow JJ.

12. GAUDRON AND GUMMOW JJ.   This is an appeal from the Full Court of the Supreme Court of Western Australia (Kennedy, Pidgeon and Templeman JJ)[7]. The Full Court upheld the validity of s 54 of the Seafarers Rehabilitation and Compensation Act 1992 (Cth) ("the Rehabilitation Act") which had been pleaded in bar to the appellant's action for damages in contract and tort. The impact of s 54 upon the appellant's rights of action in contract and tort was held not to render it a law with respect to the acquisition of property from the appellant on other than just terms, within the meaning of s 51(xxxi) of the Constitution. The issues that arise respecting s 51(xxxi) are to be understood only with an appreciation of the source and nature of the proprietary rights asserted by the appellant, and the course of events and legislation over some years. To these matters we now turn.

    [7](1998) 20 WAR 219; 159 ALR 431.

13. The appellant ("Mr Smith") was born in 1955 and was a merchant seaman.  Mr Smith was injured in December 1988.  He was then employed under a contract with the respondent ("ANL") and was serving on the "Australian Prospector".  This vessel was owned and operated by ANL.  It was an implied term of the contract of employment with ANL that it would provide Mr Smith with a safe working place and safe conditions of work and that ANL would not require him to undertake work which carried an unreasonable risk of injury.  ANL also owed Mr Smith a duty to take reasonable care to avoid a foreseeable risk of him suffering injury.

14. Mr Smith was injured on 7 December 1988 when he was required and directed by servants or agents of ANL urgently to rig and shackle a heavy pilot ladder.  The "Australian Prospector" then was approaching the port of Sakai in Japan.  On the next day, or thereabouts, whilst the vessel was at Sakai, Mr Smith was injured when he was required and directed to pull across the deck an electrical generator weighing 300 kg.  It is to be assumed for present purposes that there were breaches by ANL of its contractual obligations to Mr Smith and of its duty of care.  Mr Smith required a spinal fusion, will be unable to work again as a merchant seaman and has been permanently incapacitated since December 1988.

15. At the time Mr Smith was injured, ANL was a body corporate established and constituted by s 7 of the Australian Shipping Commission Act 1956 (Cth) ("the Principal Act") under the name of the "Australian Shipping Commission"[8].  The Commissioners of the body corporate were appointed by the Governor-General (s 8) and in significant respects the discharge of its functions and the exercise of its powers were subject to the direction or control of the Minister[9]. The capital of ANL was repayable to the Commonwealth (s 28) and the Treasurer, on behalf of the Commonwealth, was empowered by s 30 to lend ANL moneys out of parliamentary appropriations for that purpose. Provision was made in s 36 for ANL not to be subject to State taxation. Clearly if Mr Smith had sued ANL forthwith, this would have been an action to which the Commonwealth was a party within the meaning of s 75(iii) of the Constitution[10].

    [8]The statute was enacted as the Australian Coastal Shipping Commission Act 1956 (Cth), but the term "Coastal" was omitted by s 1(3) of the Australian Shipping Commission Act 1974 (Cth).

    [9]eg s 16(2)(aa), (h); s 16(2B)-(2D); s 16(3); s 17; s 19; s 30.

    [10]Inglis v Commonwealth Trading Bank of Australia (1969) 119 CLR 334; Deputy Commissioner of Taxation v State Bank (NSW) (1992) 174 CLR 219 at 232; Crimmins v Stevedoring Industry Finance Committee (1999) 74 ALJR 1 at 29 [152]-[153]; 167 ALR 1 at 38-39.

16. Further, Mr Smith's causes of action against ANL in contract and tort were created by the common law of Australia and s 75(iii) denied any operation to doctrines of Crown or Executive immunity which otherwise might be pleaded to those actions[11].  Mr Smith's common law rights were qualified in one relevant respect by federal law which was in force at the time he sustained his injuries.  The Seamen's Compensation Act 1911 (Cth) ("the 1911 Act") instituted a system of compensation irrespective of fault on the part of the employer. The 1911 Act contained in s 10A provisions which protected the employer from being twice vexed and, in particular, s 10A(3) required the deduction of compensation payments from any later award of damages against the employer[12].  Such provisions cut down common law rights but were held valid in Joyce v Australasian United Steam Navigation Co Ltd[13] as "incidental or ancillary" to and as "forming a necessary part of the scheme", which was supported by s 51(i) and s 98 of the Constitution[14]. No question of invalidity under s 51(xxxi) arose in that case. It will be necessary to return to the 1911 Act later in these reasons.

    [11]The Commonwealth v Mewett (1997) 191 CLR 471 at 491, 531, 550-551; The Commonwealth v WMC Resources Ltd (1998) 194 CLR 1 at 69 [180]; Austral Pacific v Airservices Australia (2000) 74 ALJR 1184 at 1197 [59]; 173 ALR 619 at 635.

    [12]See Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 15‑16; Telstra v Worthing (1999) 197 CLR 61 at 80‑81 [40]-[43].

    [13](1939) 62 CLR 160.

    [14](1939) 62 CLR 160 at 168.

17. There was no law of the Commonwealth which enacted a limitation regime of general operation to civil actions pursued in federal jurisdiction.  That meant that, unless and until the operation of the Judiciary Act 1903 (Cth) ("the Judiciary Act") was enlivened, the common law applied and there was no limitation period which operated in respect of Mr Smith's causes of action[15].  The submission which was pressed by ANL in the Supreme Court of Western Australia, that a limitation provision of the statute law of that State[16] of its own force barred Mr Smith's causes of action thus was misconceived[17]. Further, s 79 of the Judiciary Act operates to "pick up" State or Territory laws (dealing with such matters as limitation periods) only when a court is exercising federal jurisdiction[18].

    [15]Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297 at 301, 312.

    [16]In particular, s 47A of the Limitation Act 1935 (WA) ("the State Act") which, in some circumstances, imposed a one year limitation period.

    [17]John Robertson & Co Ltd v Ferguson Transformers Pty Ltd (1973) 129 CLR 65 at 79, 84, 87, 93; Northern Territory v GPAO (1999) 196 CLR 553 at 575 [33]; Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 352 [35].

    [18]The Commonwealth v Mewett (1997) 191 CLR 471 at 530, 555; Austral Pacific v Airservices Australia (2000) 74 ALJR 1184 at 1188 [11]-[13], 1194 [46]-[47]; 173 ALR 619 at 623‑624, 631.

18. Unless displaced by a law of the Commonwealth, the applicable Australian common law included the rules of private international law respecting contract and tort[19].  In the event, although Mr Smith sustained his injuries when the "Australian Prospector" was approaching and in a Japanese port, no party has pleaded or sought to rely on those rules.

    [19]See John Pfeiffer Pty Ltd v Rogerson (2000) 74 ALJR 1109 at 1120 [55]-[56]; 172 ALR 625 at 640‑641.

19. Did anything turn upon the circumstance that Mr Smith sustained his injuries by reason of the acts of other servants or agents of ANL?  In particular, what was the operation of the doctrine of common employment?  Did it directly impeach any cause of action which otherwise would have accrued or would it merely provide a defence to an action once instituted?  The latter proposition is correct.  The immunity of the employer in cases of common employment was regarded as a term imported by law into the contract of employment, so that it might be set up by way of defence[20]. In any event, s 59A of the Navigation Act 1912 (Cth) had abolished the doctrine of common employment for seamen to which that statute applied[21]. ANL was bound by s 59A[22].

    [20]Huddart Parker Ltd v Cotter (1942) 66 CLR 624 at 639, 656-657. See Glass, McHugh and Douglas, The Liability of Employers in Damages for Personal Injury, 2nd ed (1979) at 228‑229.

    [21]Union Steamship Co of New Zealand Ltd v Ferguson (1969) 119 CLR 191 at 199. Section 59A was inserted by s 40 of the Navigation Act 1958 (Cth) ("the 1958 Act").

    [22]This was the effect of s 2A, inserted by s 5 of the 1958 Act.

1. The claims by Mr Smith in contract and tort were choses in action which, like any chose in action recognised at law or in equity, were classified as "property" for the operation of s 51(xxxi) of the Constitution[23].  This position was confirmed by Georgiadis v Australian and Overseas Telecommunications Corporation[24].  Such choses in action might immediately be turned to account by, for example, assigning for value the damages which might later be recovered at an action subsequently instituted and pursued to judgment[25]. The relief from what otherwise would be the measure of liability in respect of an accrued cause of action will be an acquisition of property for the purposes of s 51(xxxi)[26].

   [23]See Bank of NSW v The Commonwealth (1948) 76 CLR 1 at 349.

   [24](1994) 179 CLR 297 at 306, 311-312, 314, 319-320.

   [25]Glegg v Bromley [1912] 3 KB 474; Norman v Federal Commissioner of Taxation (1963) 109 CLR 9 at 24-25, 32.

   [26]The Commonwealth v WMC Resources Ltd (1998) 194 CLR 1 at 16 [15], 29‑30 [56], 37 [81]-[83], 49 [128].

2. Counsel for ANL referred to the statement by Rich J in Loxton v Moir[27] that the "primary sense" of the phrase "chose in action" is that of "a right enforceable by an action". That statement is to be applied with some caution in a context involving the application of s 51(xxxi) of the Constitution. Thus, a law might leach the economic value of a plaintiff's chose in action whilst conferring a financial benefit upon the defendant by mitigating the duration, nature or quantum of the defendant's exposure to the plaintiff. Yet that law may still leave the plaintiff "legally free" to exercise that right by instituting and pursuing, "as [the plaintiff] pleases", an action against the defendant[28], so that the criterion stated by Rich J in Loxton v Moir would be satisfied. However, it would not necessarily follow that, because there remained a right enforceable by action, the law was not proscribed by s 51(xxxi).

   [27](1914) 18 CLR 360 at 379.

   [28]The quotation is from the judgment of Dixon J in British Medical Association v The Commonwealth (1949) 79 CLR 201 at 270.

3. Questions of substance and of degree, rather than merely of form, are involved[29].  The legislation which was invalid in its application to the plaintiff in Georgiadis denied his right to recover damages for non-economic loss and deprived him of his entitlement to full recovery of economic loss[30], but did not extinguish the whole of the rights comprising his common law cause of action.  The law which was successfully challenged in Newcrest Mining (WA) Ltd v The Commonwealth[31] did not in terms extinguish Newcrest's mining tenements and the Kakadu National Park extended only 1,000 metres beneath the surface. Nevertheless there was an effective sterilisation of the rights constituting the property in question, the mining tenements. On the surface and to the depth of 1,000 metres, s 10(1A) of the National Parks and Wildlife Conservation Amendment Act 1987 (Cth) forbade the carrying out of operations for the recovery of minerals. As a legal and practical matter, the vesting in the Commonwealth of the minerals to that depth and the vesting of the surface and the balance of the relevant segments of the subterranean land in the Director of National Parks and Wildlife denied to Newcrest the exercise of its rights under the mining tenements. The result was that, in respect of those mining tenements, there were acquisitions of property from Newcrest other than on the constitutional requirement of just terms. As Brennan CJ later put it, the property of the Commonwealth was enhanced because it was no longer liable to suffer the extraction of the minerals from its land in exercise of the rights conferred by Newcrest's mining tenements[32].

   [29]Bank of NSW v The Commonwealth (1948) 76 CLR 1 at 349‑350; Clunies-Ross v The Commonwealth (1984) 155 CLR 193 at 201‑202; The Commonwealth v WMC Resources Ltd (1998) 194 CLR 1 at 49 [128]-[129].

   [30]See the discussion of the plaintiff's case by Toohey J (1994) 179 CLR 297 at 318.

   [31](1997) 190 CLR 513 at 560, 561, 635, 638.

   [32]The Commonwealth v WMC Resources Ltd (1998) 194 CLR 1 at 17 [17].

4. On the other hand, the degree of impairment of the bundle of rights constituting the property in question may be insufficient to attract the operation of s 51(xxxi). For example, the prohibition imposed under the legislation upheld in Waterhouse v Minister for the Arts and Territories[33] upon the export of the applicant's painting left him free to retain, enjoy, display or otherwise make use of the painting.  He was free to sell, mortgage or otherwise turn the painting to his advantage, subject to the requirement of an export permit if the owner or any other person desired to take it out of Australia.  The legislation considered in British Medical Association v The Commonwealth[34], and held invalid on other grounds, today perhaps would be thought to be nearer the line of invalidity.  In British Medical Association, Dixon J was of the opinion that there was no involuntary taking of property from chemists without just compensation.  The chemists were legally free to supply pharmaceuticals or not, as they pleased, in a situation where, if a sale were made at other than a price fixed by the Commonwealth, there would be little or no other trade for them in that commodity.

   [33](1993) 43 FCR 175.

   [34](1949) 79 CLR 201.

5. The considerations involved in these decisions apply in the present case, which indeed turns upon them.  In the period after Mr Smith sustained his injuries early in December 1988, his position was affected by Commonwealth laws enacted in two stages.  The first was later in 1988 and the second in 1992.  We turn to consider the earlier of these laws.

6. The ANL (Conversion into Public Company) Act 1988 (Cth) ("the ANL Act") received the Royal Assent on 14 December 1988 and was fully in force by 1 July 1989. The ANL Act substantially amended the Principal Act. The name of the corporation became "ANL Limited" in place of "Australian Shipping Commission" and ANL became a company registered under the Companies Act 1981 (Cth) as a public company limited by shares[35].

   [35]New ss 42‑49 inserted by s 9 of the ANL Act, operative from 1 July 1989.

7. The changes in the constitution of ANL did not affect its liabilities or any legal proceedings to be instituted against it and those proceedings might be commenced against ANL as newly constituted. This is the effect of s 25B(2) of the Acts Interpretation Act 1901 (Cth). The ANL Act nevertheless changed the nature of the entity against which Mr Smith's choses in action lay. However, it is not suggested that this result was at odds with s 51(xxxi) of the Constitution, for example, as "but a circuitous device to acquire indirectly the substance of a proprietary interest without at once providing the just terms guaranteed by s 51(xxxi) of the Constitution when that is done". These words were used by Dixon J in Bank of NSW v The Commonwealth[36] with respect to the changes invalidly sought to be made by the Banking Act 1947 (Cth) to the internal structures of the private banks.

   [36](1948) 76 CLR 1 at 349.

8. The changes made by the ANL Act did not deny any scope for the operation of s 51(xxxi) of the Constitution upon legislation which might provide for the acquisition of property by ANL. The acquisition referred to in that provision is not limited to acquisition by the Commonwealth or an agency of the Commonwealth[37].

   [37]Australian Tape Manufacturers Association Ltd v The Commonwealth (1993) 176 CLR 480 at 510‑511, 526.

9. The question does arise whether, after the commencement of the ANL Act, ANL no longer answered the description in s 75(iii) of the Constitution as the Commonwealth or a party being sued on behalf of the Commonwealth[38]. It is unnecessary to answer that question. A proceeding which attracts federal jurisdiction with respect to one of the nine descriptions of "matter" contained in ss 75 and 76 of the Constitution may contain within it, or involve at its threshold, a matter answering the description of one or more of those heads of federal jurisdiction[39]. If ANL no longer fell within the terms of s 75(iii) of the Constitution this would be a consequence of the amendment of the Principal Act by the ANL Act. However, the continuing liability to Mr Smith would depend for its existence upon the ANL Act and the institution of proceedings by Mr Smith after the commencement of the ANL Act would involve a matter arising under a law of the Commonwealth within the meaning of s 76(ii) of the Constitution[40].

   [38]cf Telstra v Worthing (1999) 197 CLR 61 at 71 [9].

   [39]Re East; Ex parte Nguyen (1998) 196 CLR 354 at 361 [14].

   [40]LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 at 581.

10. The next federal legislative intervention was in 1992, with the enactment of the Rehabilitation Act and the Seafarers Rehabilitation and Compensation (Transitional Provisions and Consequential Amendments) Act 1992 ("the Transitional Provisions Act"). It is this legislation which ANL pleaded in bar to Mr Smith's actions in contract and tort and which gives rise to the issue respecting s 51(xxxi). The decision in Felton v Mulligan[41] means that this reliance upon federal law for an immunity to the plaintiff's claims itself attracted the exercise of federal jurisdiction in that action. This is a significant consideration. It means that, even if federal jurisdiction otherwise is not attracted, for example because the employer is not the Commonwealth nor a party being sued on its behalf within the meaning of s 75(iii) of the Constitution, reliance by the employer upon the 1992 legislation in answer to the common law claims of the employee will infuse the proceeding with federal jurisdiction.

    [41](1971) 124 CLR 367.

11. The relevant provisions of both the Rehabilitation Act and the Transitional Provisions Act came into operation on 24 June 1993[42]. The Rehabilitation Act applied to the employment of employees on a "prescribed ship" engaged in trade or commerce between Australia and places outside Australia (s 19(1)(a)). It is accepted that the "Australian Prospector" was a "prescribed ship" within the meaning of the definition in s 3. Accordingly, in its application to Mr Smith, the Rehabilitation Act was a law supported by s 51(i) and s 98 of the Constitution[43].

    [42]Section 2 of the Rehabilitation Act provided that the relevant provisions thereof (including Pt 2) were to commence on a day or days to be fixed by Proclamation; in the absence of a Proclamation, the commencement was to be "on the first day after the end of" the period "of 6 months beginning on the day on which this Act receives the Royal Assent", as to which see the definitions of "Month" and "Calendar month" in s 22(1)(b) and (g) of the Acts Interpretation Act 1901 (Cth). The Royal Assent was given on 24 December 1992. There appears to have been no Proclamation. Section 2 of the Transitional Provisions Act provided that its relevant provisions were to commence on the day Pt 2 of the Rehabilitation Act commenced.

    [43]Joyce v Australasian United Steam Navigation Co Ltd (1939) 62 CLR 160.

12. Section 16 of the Transitional Provisions Act repealed the 1911 Act. This statute had applied to Mr Smith because, within the meaning of sub‑par (a)(i) of s 4(1), he had been employed on the "Australian Prospector" which was engaged in trade and commerce with other countries. At the time he sustained his injuries in 1988 and at the time of its repeal, the 1911 Act had denied the right of seamen to obtain from the employer a remedy both at common law and under the statutory scheme. In particular, s 10A(3) had provided:

    "A seaman who recovers damages from an employer in respect of an injury shall not be entitled to compensation or any payment under this Act in respect of the same injury and any sum received by him under this Act in respect of that injury prior to the award of the damages shall be deducted from the amount of the damages recoverable from the employer."

13. The repeal of s 10A removed a restriction which otherwise would have applied to the concurrent pursuit by Mr Smith of his common law and federal statutory rights. However, the Rehabilitation Act and another provision of the Transitional Provisions Act restricted the pursuit of Mr Smith's common law rights in such a fashion as for him to complain that the requirements of s 51(xxxi) of the Constitution were attracted to that legislation and its terms were not satisfied. The crucial provisions are s 54 of the Rehabilitation Act and s 13 of the Transitional Provisions Act.

14. Section 54 reads:

    "(1)     Subject to section 55, a person does not have a right to bring an action or other proceedings against his or her employer, or an employee of the employer in respect of:

    (a)an injury sustained by an employee in the course of his or her employment, being an injury in respect of which the employer would, apart from this subsection, be liable (whether vicariously or otherwise) for damages; or

    (b)the loss of, or damage to, property used by an employee resulting from such an injury.

    (2)      Subsection (1) applies whether that injury, loss or damage occurred before or after the commencement of this section.

    (3)      Subsection (1) does not apply in relation to an action or proceeding instituted before the commencement of this section."

15. Section 54 did not apply in relation to an action or proceeding instituted before 24 June 1993 (s 54(3)), but Mr Smith instituted his proceedings some months thereafter, on 9 November 1994. Section 54(1) provided that, subject to s 55 (to which it will be necessary to return), "a person does not have a right to bring an action or other proceedings" against the employer in respect of an injury sustained by the employee in the course of employment, being an injury in respect of which the employer would, apart from s 54(1), be liable for damages. That sub‑section was stated by s 54(2) to apply "whether that injury … occurred before or after the commencement of this section". Thus, on its face, s 54 denied, from 24 June 1993, the right of Mr Smith to bring an action against ANL in respect of the injuries sustained by him in December 1988. The section was directed to any court in which such an action was brought and would prevail to the extent any State law was inconsistent with it.

16. Section 54(1) may be compared with s 44 of the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth) ("the Georgiadis statute") which was considered in Georgiadis.  That section was treated as effecting extinguishment of significant elements of the common law rights of the plaintiff[44].  The common law choses in action at stake in Georgiadis had not become statute barred before s 44 commenced. However, in The Commonwealth v Mewett[45] Gummow and Kirby JJ concluded that even a chose in action which had become barred by a limitation statute in traditional form would retain sufficient substance to answer the description of "property" in s 51(xxxi) were a federal law thereafter to purport to extinguish it. In the present case, the question of the operation of s 51(xxxi) arises within a different frame. Here, the choses in action had not become barred and the federal law did not extinguish them; rather, it imposed a bar.

    [44](1994) 179 CLR 297 at 306, 310, 314, 318, 322. See also The Commonwealth v Mewett (1997) 191 CLR 471 at 503‑505, 553; Telstra v Worthing (1999) 197 CLR 61 at 80 [38].

    [45](1997) 191 CLR 471 at 534‑535.

17. Section 44 of the Georgiadis statute provided that the action or other proceeding in question "does not lie", rather than (as does s 54) expressing the prohibition as a denial of the plaintiff of the right to bring an action. However, like s 45 of the Georgiadis statute, s 55 of the Rehabilitation Act empowered the employee in certain circumstances to elect against the receipt of compensation under the statutory scheme and in favour of an action to recover damages for non-economic loss up to a "capped" sum; to such an action, s 54(1) would not apply. Section 54 of the Rehabilitation Act also was qualified by s 13 of the Transitional Provisions Act. This did not have a counterpart in the Georgiadis statute. Section 13 states:

    "Despite section 54 of the [Rehabilitation] Act, an employee has the right to bring, within 6 months after the commencing day, an action or other proceeding against his or her employer, or an employee of the employer, in respect of:

    (a)an injury sustained before the commencing day by the employee in the course of his or her employment, being an injury in respect of which the employer would, apart from this subsection, be liable (whether vicariously or otherwise) for damages; or

    (b)the loss of, or damage to, property used by an employee resulting from such an injury."

    The expression "this subsection" in par (a) gives rise to difficulty. There is no sub-section in s 13. It may have been that, in an earlier draft, what became s 13 was designed to be part of s 54 itself. However that may be, the principle applied in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation[46] applies here to avoid a nonsense and make it permissible to depart from the literal meaning of the text by reading the phrase "this subsection" as if it were "section 54 of the [Rehabilitation] Act".

    [46](1981) 147 CLR 297.

18. Read in this way, the effect of s 13, as regards Mr Smith, was that he had the right to bring before 24 December 1993 his action against ANL. In the event, Mr Smith did not do so within that time. He instituted the proceeding in the District Court on 9 November 1994. That was just one month short of six years from the date on which he had been injured. The proceeding was transferred to the Supreme Court on 12 April 1996. The first defendant was ANL which was misidentified as "Australian National Line Limited". This error has continued throughout the litigation and into this Court; the identity of the respondent in this Court should be amended to "ANL Limited". The Commonwealth was joined as second defendant, apparently to support an allegation by Mr Smith that s 54 of the Rehabilitation Act was invalid.

19. This provided another basis (in s 76(i) of the Constitution) for the exercise by the courts of Western Australia of federal jurisdiction invested by s 39 of the Judiciary Act[47]. Further, the institution of this proceeding attracted the operation of s 79 of that statute. This then "picked up" the statute law of Western Australia respecting such matters as limitation periods, to the extent that it was not "otherwise provided" by federal law such as s 54 of the Rehabilitation Act[48]. In this Court, ANL does not contend that, on the hypothesis that s 54 did not validly operate upon Mr Smith's causes of action, nevertheless the action was barred by any State law then liable to be "picked up" by s 79.

    [47]No reliance was placed upon the investment of federal jurisdiction under s 9 of the Admiralty Act 1988 (Cth). Mr Smith's claims against ANL may have been general maritime claims within the meaning of s 4(3)(d) of that statute. Section 37 thereof sets out its own limitation period regime for such claims, which may have been incompatible with the later enacted provisions of s 54 of the Rehabilitation Act.

    [48]See Northern Territory v GPAO (1999) 196 CLR 553 at 587‑589 [78]-[83], 605‑606 [134], 650 [255].

20. As we have indicated earlier in these reasons, ANL pleaded s 54 of the Rehabilitation Act. An order was made in the Supreme Court for the separate determination of the validity of s 54 as a preliminary issue and on the basis that Mr Smith would be able to establish the facts he pleaded. The facts stated in these reasons are recounted on the same footing. Ipp J answered in the negative the question whether s 54 was invalid. The question and answer had been framed by the parties in terms of s 54 as a whole and with no reference (as in the case of the order in Georgiadis[49]) to the particular proceeding and the application of the provision to the plaintiff.  That was not good practice[50].

    [49](1994) 179 CLR 297 at 330.

    [50]See Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 353‑360 [40]-[59].

1. Thereafter, a registrar made orders by consent dismissing the action and entering judgment for ANL and the Commonwealth.  An appeal against ANL and the Commonwealth was taken by Mr Smith to the Full Court.  The appeal against the Commonwealth was discontinued.  The effect of the orders of the Full Court was to uphold the ruling by Ipp J respecting s 54.

2. In this Court, Mr Smith seeks orders which would have the effect of replacing the answer given by Ipp J with one that s 54 is invalid in its application to his action against ANL, and reinstating that action so that the pleading by ANL in reliance upon s 54 be struck out and the action proceed to trial.

3. We would allow the appeal and make orders with respect to Mr Smith's action which give effect to the conclusion that s 54 is invalid in so far as it applies to choses in action in respect of injury, loss or damage which occurred before 24 June 1993, and which are choses in action subsisting at common law at that date.  This is because we accept the submissions by Mr Smith that in this respect s 54 is beyond the power of the Parliament.

4. Save for those powers which clearly contemplate the acquisition of property other than on just terms, the particular powers in s 51 and s 98 of the Constitution (and that in s 51(xxxix)) have abstracted from them all content which otherwise would enable the compulsory acquisition of property and subject the power of acquisition to an obligation to provide just terms[51].  Moreover, in Newcrest[52], three members of this Court concluded that the authority of the Parliament under s 122 to make laws for the government of any territory identifies a purpose within the meaning of s 51(xxxi). Section 54 of the Rehabilitation Act is a law with respect to the acquisition of property but does not provide just terms. We turn to explain why we reach that conclusion. Nothing which follows casts any doubt upon the valid operation of s 54 upon rights to bring an action in respect of injury, loss or damage which occurred after 24 June 1993.

   [51]Nintendo Co Ltd v Centronics Systems Pty Ltd (1994) 181 CLR 134 at 160; Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 567‑568, 593.

   [52](1997) 190 CLR 513 at 561, 600, 652.

5. ANL's preferred submission is that s 54 left intact Mr Smith's rights enforceable by action, but with the new limitation imposed by s 13 as to the time for the institution of proceedings. We have indicated earlier in these reasons that, even were that construction to be placed upon those provisions, it would not necessarily follow that s 51(xxxi) did not operate in such circumstances.

6. The better construction of the legislation is that s 54 denied employees their otherwise existing rights to bring actions against their employers. Mr Smith submits that, in its application to such rights in respect of pre‑24 June 1993 injury, loss or damage, s 54(2) operated once, that is to say upon its commencement on that date. Section 13 of the Transitional Provisions Act then replaced the common law rights, which had been unlimited in time, something denied by s 54, with a right to bring an action within six months of 24 June 1993. We accept those submissions. The consequence of the preferred construction of the legislation is that, in the circumstances under consideration, s 54 operated to bring about an acquisition of property and s 13 did not provide the just terms which would have saved the legislation. Nor did the election provisions of s 55 provide just terms. If the employee elects under s 55, compensation under the statute will not be payable. Then, in an action to which s 54(1) will not provide a bar, only a "capped" sum will be recoverable as damages for non-economic loss.

7. The issue here does not turn upon the distinction which ANL seeks to draw between Georgiadis and the present case by emphasising that the law in Georgiadis extinguished part of the common law rights in question, whereas s 54 merely barred the remedy.  The right to bring the action without the defendant being in a position to plead a time bar is a significant and integral element of the cause of action itself.  To impose the bar found in s 54 is to do more than impair the enjoyment of the property constituted by the chose in action.  It does not attract reasoning of the kind in Waterhouse.  Rather, the substance of the chose in action is impeached and a correlative and significant benefit is conferred upon the defendant.

8. The reasoning of Dixon J in British Medical Association, upon which ANL relied, does not assist its case.  The legislative scheme considered in that legislation provided for payment by the Commonwealth at prescribed rates to pharmacists who supplied prescription drugs to customers; pharmacists were not obliged to participate in the scheme or, if participants, to respond to any particular request for supply.  The acquisition with which this case is concerned was effected directly by force of the legislation and does not occur by reason of any subsequent voluntary steps taken by Mr Smith.

9. The question thus becomes whether just terms were provided, bearing in mind that s 51(xxxi) involves a compound concept of "acquisition of property on just terms"[53].  It is trite that the decisions of this Court allow to the Parliament a measure of latitude in such matters.  ANL relied upon Grace Brothers Pty Ltd v The Commonwealth[54] in which the validity of certain provisions of the Lands Acquisition Act 1906 (Cth) was upheld. In Grace Brothers, Dixon J said of s 51(xxxi)[55]:

   "Under that paragraph the validity of any general law cannot, I think, be tested by inquiring whether it will be certain to operate in every individual case to place the owner in a situation in which in all respects he will be as well off as if the acquisition had not taken place.  The inquiry rather must be whether the law amounts to a true attempt to provide fair and just standards of compensating or rehabilitating the individual considered as an owner of property, fair and just as between him and the government of the country."

   [53]Grace Brothers Pty Ltd v The Commonwealth (1946) 72 CLR 269 at 290.

   [54](1946) 72 CLR 269.

   [55](1946) 72 CLR 269 at 290.

10. It is true that, as a practical matter, in the absence of s 54 of the Rehabilitation Act, the institution of proceedings on an employee's common law claims would attract the operation of limitation provisions under State or Territory legislation either directly or, if federal jurisdiction had been engaged, by dint of s 79 of the Judiciary Act. The terms of that legislation are not uniform and are apt to attract amendment from time to time. Nevertheless, as a broad proposition, it may be accepted that a six year period has been the norm in such legislation respecting actions in tort and contract. Whilst, on this hypothesis, time was running against causes of action accrued in favour of employees before 24 June 1993, was it not fair to give those employees six months thereafter in which to bring an action? Section 13 of the Transitional Provisions Act is so expressed, on the construction we prefer, as to confer a fresh, and federal, right of six months' duration, to end 24 December 1993. To those employees for whom at 24 June 1993 almost six years had expired since they were injured, s 13 bestowed an advantage by improving what otherwise would have been their susceptibility to the application of a six year limitation period had they sued, say, in November 1993. Other employees would be prejudiced by the legislative changes.

11. In the nature of things, one would expect employees to be placed at various points along this time scale.  Mr Smith was so placed that, in the absence of the supervening 1992 legislation, as a practical matter, he could have waited until December 1994 before suing without fear of a limitation bar[56]. It is to stretch beyond its legal endurance the concept of "just terms" to have regard to what, in general, would have been the position of employees if s 54 had not been enacted and to treat s 13 as a true attempt to provide a fair and just standard of compensating employees or rehabilitating their former position. ANL contends that the acquisitive effect of s 54 was at once negated by s 13, which gave sufficient time to realise the full value of the property in question. We disagree. The period of grace specified in s 13 was too short and its operation from one employee to the next too capricious to meet the constitutional requirement of just terms.

    [56]This assumes that the one year limitation period provided in s 47A of the State Act would not have been picked up by s 79 of the Judiciary Act.

12. ANL also submitted, with the support of the Attorney-General for the Commonwealth as an intervener, that it was significant that the 1992 changes erected a new regulatory scheme for seafarers which adjusted competing rights and claims between employers and employees.  Many laws may be so described.  Questions arise, as they did in Airservices Australia v Canadian Airlines International Ltd[57], whether provisions calculated to enforce or induce compliance with the regulatory scheme by those choosing to participate in it must answer the condition imposed by s 51(xxxi) if they are to be valid. That is not this case.

    [57](1999) 74 ALJR 76; 167 ALR 392.

13. Further, no question, for example, arises as to the prospective operation of the election requirements of the new scheme.  Nor could it be said that the Parliament might not enact, to operate prospectively, a limitation law to operate in federal jurisdiction in respect of claims in contract and tort such as those involved in this case.

14. The point of distinction is that Mr Smith complains of the legislative impairment of his common law rights which were subsisting at the commencement of that legislation.  The anterior rights which were reduced by subsequent legislation upheld in Health Insurance Commission v Peverill[58] were the statutory rights of patients to payment of Medicare Benefits.  These rights, pursuant to express statutory provision enabling this to be done, had been assigned to Dr Peverill[59].  Common law rights were not at stake as they are in the present litigation.  The interests created by legislative regulatory schemes may inherently be susceptible of variation.  However, in The Commonwealth v WMC Resources Ltd[60], various views were expressed as to whether the submission that the enjoyment of any right created solely by a law of the Commonwealth always is contingent upon subsequent legislative abrogation or extinguishment, is too wide.  The matter need not be further pursued here.

    [58](1994) 179 CLR 226.

    [59]See the analysis of the legislation by Brennan J (1994) 179 CLR 226 at 238‑241.

    [60](1998) 194 CLR 1 at 17 [17]-[18], 29 [55], 36‑38 [79]-[86], 51‑55 [133]-[141], 68‑75 [178]-[203], 92‑94 [238]-241]. See also The Commonwealth v Mewett (1997) 191 CLR 471 at 504‑505.

15. ANL relied upon what was said to be the improvements for seafarers in the no‑fault compensation scheme established by the Rehabilitation Act to that which operated under the 1911 Act. It is unnecessary to determine whether this be so, either generally or in the case of Mr Smith. There was disagreement in the submissions as to the many matters of detail, including questions of fact, which would be involved in that determination. The basic objection here is the same as that to the Georgiadis statute, which also introduced a new no‑fault scheme. The 1992 legislation provides nothing which can fairly be described as compensation with respect to the choses in action which had accrued before the new scheme commenced and the substance or reality of proprietorship in that which was acquired.

16. The identification of the respondent should be amended to "ANL Limited".  The appeal should be allowed with costs.  The orders of the Full Court should be varied so that:

    (a)the appeal from the orders of Registrar Powell of 9 September 1996 is allowed with costs, the orders of the Registrar are set aside and the application to the Registrar is dismissed with costs;

    (b)the appeal from the orders of Ipp J dated 27 August 1996 is allowed with costs and in place of the answer to question 2 of the questions in the preliminary issues it be answered:  "Section 54 of the Seafarer's Rehabilitation and Compensation Act 1992 (Cth) is invalid in its application to the causes of action pleaded by the plaintiff";

    (c)costs of the trial of the preliminary questions, including any reserved costs, be the plaintiff's costs in the action.

    Steps should then be taken to strike out pars 10 and 11 of ANL's defence and the action should proceed to trial on the merits.

17. McHUGH J.   This appeal should be dismissed for the reasons given by Hayne J.

18. KIRBY J. This appeal concerns s 51(xxxi) of the Constitution. That paragraph requires that federal laws with respect to the acquisition of property from any State or person for a federal purpose must provide "just terms" for the acquisition. In deciding the appeal, this Court must revisit the principles elaborated in numerous earlier decisions concerning s 51(xxxi), especially Georgiadis v Australian and Overseas Telecommunications Corporation[61] and The Commonwealth v Mewett[62].

    [61](1994) 179 CLR 297 ("Georgiadis").

    [62](1997) 191 CLR 471 ("Mewett").

    The facts

19. In late 1988, Mr Stephen Smith (the appellant) was employed in Western Australia by the Australian Shipping Commission as a merchant seaman on board its ship "Australian Prospector".  He claimed that, in the course of such employment, in December 1988, while approaching port in Japan, he suffered injuries resulting in loss and damage.  He asserted that such loss and damage were the consequence of negligence on the part of the Australian Shipping Commission for which the public company, ANL Limited (the respondent), since created[63], is liable.  He also sued the respondent for breach of the implied terms of his contract of employment that he would be provided by his employer with safe conditions of work and a safe place of work.

    [63]ANL (Conversion into Public Company) Act 1988 (Cth). That Act was assented to on 14 December 1988 and was proclaimed to come into operation on a later date. It amended the Australian Shipping Commission Act 1956 (Cth).  See now ANL Act 1956 (Cth). By s 25B(2)(b) of the Acts Interpretation Act 1901 (Cth), it is provided that, where an Act alters the constitution of a body, then, unless the contrary intention appears, the liabilities of the body are not affected by the alteration. See Smith v Australian National Line Ltd (1998) 20 WAR 219 at 243.

20. On 9 November 1994, the appellant issued a writ out of the District Court of Western Australia. This named the respondent and the Commonwealth as defendants. The accompanying statement of claim sought damages from each. The writ was issued a month short of the expiry of the six year limitation period provided under s 38(1)(c) of the Limitation Act 1935 (WA) in respect of claims in negligence and for breach of contract. By federal law, that Act is rendered applicable to the exercise of federal jurisdiction by a State court[64].

    [64]Judiciary Act 1903 (Cth), ss 79.

21. The appellant's proceedings were transferred to the Supreme Court of Western Australia. Relevantly, the respondent raised two defences to the claim. The first concerned a suggested application to the appellant's case of s 47A of the Limitation Act which, it was submitted, would have put the appellant out of court without any need to consider a constitutional question.  Although that defence was upheld by the primary judge, Ipp J[65], the Full Court of the Supreme Court of Western Australia overruled his decision in that respect[66].  No cross-appeal or notice of contention being filed, the first defence can be disregarded by this Court.  Special leave to appeal was confined to that part of the reasoning of the Full Court that concerned the constitutional question.

    [65]Smith v Australian National Line unreported, Supreme Court of Western Australia, 27 August 1996 at 5-19.

    [66]Smith v Australian National Line Ltd (1998) 20 WAR 219 at 226 per Kennedy J, 245 per Pidgeon J, 253 per Templeman J.

22. The constitutional question arose out of the second defence. By it, the respondent contended that the appellant was precluded from instituting proceedings against it by reason of the operation of s 54 of the Seafarers Rehabilitation and Compensation Act 1992 (Cth)[67] ("the Seafarers Act"), read with s 13 of the Seafarers Rehabilitation and Compensation (Transitional Provisions and Consequential Amendments) Act 1992 (Cth)[68] ("the Transitional Provisions Act").  The Supreme Court ordered that identified questions of law be tried as preliminary issues.  Relevantly, the preliminary issue which is now before this Court is[69]:

    "Is s 54 of the Seafarers Act invalid and inoperative under the provisions of s 51(xxxi) of the Constitution[?]"

    [67]The provisions of s 54 of the Seafarers Act are set out in the reasons of Gaudron and Gummow JJ at [33].

    [68]The provisions of s 13 of the Transitional Provisions Act are set out in the reasons of Gaudron and Gummow JJ at [36].

    [69]Smith v Australian National Line unreported, Supreme Court of Western Australia, 27 August 1996 at 5.

23. The primary judge answered that question in the negative.  Because that answer (as well as his Honour's answer on the limitation point) effectively decided that the appellant's action was not maintainable, the Supreme Court, in September 1996, by consent, dismissed the appellant's claims against the respondent and the Commonwealth.

24. The appellant was thereupon granted leave to appeal to the Full Court from the judgment of the primary judge. His appeal, so far as it challenged the dismissal of his action against the Commonwealth, was discontinued. This left on foot his appeal against the determination in favour of the respondent of the preliminary issue concerning the validity of s 54 of the Seafarers Act, read with s 13 of the Transitional Provisions Act ("the impugned legislation").

    The decision of the Full Court

25. The Full Court divided on this question. The majority, Kennedy and Templeman JJ, dismissed the appeal. Their Honours concluded that, properly characterised, the impugned legislation merely modified the limitation period applicable to the appellant's claim. It did not extinguish the appellant's causes of action. Section 54 was not, therefore, a law with respect to the acquisition of property. Consequently, no question arose as to the validity of the section under s 51(xxxi) of the Constitution[70]. In this respect, their Honours differed from the conclusion of the primary judge, who had held that the impugned legislation did effect an acquisition of property. However, the primary judge went on to hold that s 54 of the Seafarers Act did not bear the distinct character of a law "with respect to" the acquisition of property and, for that reason, did not attract the obligations of s 51(xxxi)[71].

    [70]Smith v Australian National Line Ltd (1998) 20 WAR 219 at 231 per Kennedy J, 255 per Templeman J.

    [71]Smith v Australian National Line unreported, Supreme Court of Western Australia, 27 August 1996 at 22-24 per Ipp J.

26. The dissenting judge in the Full Court, Pidgeon J, felt unable to distinguish the present case from Georgiadis[72].He concluded that, but for the interposition of the impugned legislation, the appellant enjoyed rights at common law, vested in him, to bring his action against the respondent. The impugned legislation had purported to extinguish those rights. Although the operative effect of such extinguishment was postponed by reason of s 13 of the Transitional Provisions Act, s 54 of the Seafarers Act eventually achieved that end, resulting in a purported deprivation of the appellant's property (in the form of the choses in action which he propounded). The extinguishment of the appellant's rights had been to the equivalent benefit of the respondent which was thereby effectively relieved of liability to the appellant. This amounted to an "acquisition" of the appellant's property. Pidgeon J rejected the argument that s 54 of the Seafarers Act could not be characterised as a law of the kind referred to in s 51(xxxi)[73].

    [72]Smith v Australian National Line Ltd (1998) 20 WAR 219 at 247.

    [73]Smith v Australian National Line Ltd (1998) 20 WAR 219 at 247-250 per Pidgeon J.

1. The Full Court granted the appellant leave to appeal.  However, because of the adverse determination of the constitutional point by the majority, the appeal was dismissed.  It is from that outcome that, by special leave, the appeal now comes to this Court.

   The legislation

2. Before the enactment of the Seafarers Act, compensation for injuries to employees on ships having a relevant Australian connection was regulated by the Seamen's Compensation Act 1911 (Cth). In 1988, the federal Parliament enacted the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth). This was a compensation statute of broad application to federal employees, which was subsequently renamed the Safety, Rehabilitation and Compensation Act 1988 (Cth)[74].

   [74]Commonwealth Employees' Rehabilitation and Compensation Amendment Act 1992 (Cth), s 4.

3. Soon after that Act came into operation, a decision was taken to "replace the outdated and inadequate" provisions of the Seamen's Compensation Act with "a new scheme of compensation" that would include "modern and comprehensive rehabilitation and compensation arrangements similar to those applicable to Commonwealth employees"[75]. In the result, the Seafarers Act was enacted, substantially based on the provisions of the Safety, Rehabilitation and Compensation Act.

   [75]See the Second Reading Speech for the Bill:  Australia, House of Representatives, Parliamentary Debates (Hansard), 14 October 1992 at 2145.

4. The scheme of the Seafarers Act involves the application of its provisions to "employees"[76] who are employed in any capacity on a "prescribed ship"[77] engaged in trade or commerce, relevantly "between Australia and places outside Australia"[78]. There was no dispute that each of these preconditions applied to the present facts. Nor was there any dispute as to the constitutional validity of such provisions. Substantially, such validity rests on the trade and commerce power in the Constitution[79] which is further extended, by specific constitutional provision, "to navigation and shipping"[80]. However, to be absolutely sure, the Seafarers Act is also expressed to have application to the "employees" of corporations to which the Constitution applies[81]. Those subject to the Seafarers Act are obliged: (1) to assess and pay compensation for work-related injuries and illnesses in accordance with the terms of the Act[82]; (2) to arrange assessment of the rehabilitation needs and the provision of rehabilitation programs to injured workers[83]; and (3) to maintain policies of insurance sufficient to meet their obligations to pay compensation under the Act[84].

   [76]Defined in s 4(1).

   [77]Defined in s 3 by reference to Pt II of the Navigation Act 1912 (Cth), other than a "Government ship" which is defined in the same section not to include a ship "that belongs to a trading corporation that is an authority of agency of the Commonwealth".

   [78]s 19(1).

   [79]Constitution, s 51(i).

   [80]Constitution, s 98.

   [81]s 19(2)-(4) referring to s 51(xx) of the Constitution.

   [82]See s 63.  Determinations are subject to review by the Administrative Appeals Tribunal:  see Pt 6, Div 3.

   [83]Pt 3.

   [84]s 93.

5. According to the Minister's Second Reading Speech in support of the Bill that became the Seafarers Act, common law claims against employers were "counter-productive to the fundamental objective of helping injured employees rebuild their lives and return to employment as quickly as possible"[85]. It is in this context that the provisions of s 54 of the Seafarers Act must be considered.

   [85]Australia, House of Representatives, Parliamentary Debates (Hansard), 14 October 1992 at 2147.

6. Some provisions of the Seafarers Act commenced on the date the Act received Royal Assent. However, by virtue of s 2(3) of that Act, most of its provisions were not to commence, relevantly, until the day following six months after the Royal Assent. As the Seafarers Act was given such Assent on 24 December 1992, the affected provisions, including those in s 54, commenced operation on 24 June 1993. These provisions were, in turn, further affected by the provisions of s 13 of the Transitional Provisions Act. The "commencing day" referred to in s 13 of the Transitional Provisions Act was defined by s 3(2) of that Act to be the day on which Pt 2 of that Act (which included s 13) commenced. Section 2(1) of that Act defined the commencement day of Pt 2 to be the same as the day on which Pt 2 of the Seafarers Act commenced. Therefore, an employee had an additional six months from the commencing day, which was 24 June 1993, to bring an action, despite the provisions of s 54 of the Seafarers Act. The foregoing statutory scheme was not in dispute.

   The issues

7. In determining whether s 54 of the Seafarers Act, read with s 13 of the Transitional Provisions Act, is constitutionally valid, the following issues arise:

   1.Were the appellant's choses in action against the respondent "property" within the meaning of s 51(xxxi) of the Constitution?

   2.If so, has such "property" been "acquired" within the meaning of that paragraph?

   3.If "property" has been "acquired", is the impugned legislation properly characterised as being "with respect to the acquisition of property" within the paragraph?

   4.If so, did the impugned legislation provide for the "acquisition" of "property" otherwise than on "just terms" as compliance with s 51(xxxi) of the Constitution obliges?

   The appellant may succeed in overturning the majority decision of the Full Court only if the answer to each of the foregoing questions is in the affirmative.

   The relevant approach

8. Because the approach to be taken to resolving the foregoing issues is established by recent authority[86], I will not restate all of the considerations that must be kept in mind, but simply remind myself of the following general propositions.

   [86]See eg The Commonwealth v WMC Resources Ltd (1998) 194 CLR 1 ("WMC Resources").

9. First, the provisions of s 51(xxxi) have repeatedly been described as a constitutional guarantee[87].  That guarantee exists in the form of a limitation on what would otherwise be the extensive power which the Parliament would enjoy to enact a law postulated to be "for any purpose in respect of which the Parliament has power to make laws".  Because of its object and function, the constitutional provision must not be given a pedantic[88], rigid[89], or narrow[90] construction but one broad and ample such as befits the achievement of its objective.

   [87]Minister of State for the Army v Dalziel (1944) 68 CLR 261 at 276, 284-285; Clunies-Ross v The Commonwealth (1984) 155 CLR 193 at 201-202; Australian Tape Manufacturers Association Ltd v The Commonwealth (1993) 176 CLR 480 at 509; Mutual Pools & Staff Pty Ltd v The Commonwealth (1994) 179 CLR 155 at 168; Re Director of Public Prosecutions; Ex parte Lawler (1994) 179 CLR 270 at 285; WMC Resources (1998) 194 CLR 1 at 90; cf R v Home Secretary; Ex parte Brind [1991] 1 AC 696 at 757.

   [88]Bank of NSW v The Commonwealth (1948) 76 CLR 1 at 349-350.

   [89]Minister of State for the Army v Dalziel (1944) 68 CLR 261 at 275-276.

   [90]Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 660-661 ("Newcrest Mining").

10. Secondly, it is the practical operation of the law said to offend the constitutional requirement that will be considered, not merely its expression or legal form[91].

    [91]WMC Resources (1998) 194 CLR 1 at 90.

11. Thirdly, whilst every word in s 51(xxxi) is important and has been elaborated by past decisions, the paragraph as a whole refers to a composite conception[92]. Although the stated issues in these proceedings properly address attention to each of the elements in s 51(xxxi), the ultimate requirement to consider the characterisation of the challenged law against the standard expressed in the paragraph, read as a whole, obliges the decision-maker to perform an act of judgment. Different legislation with different purposes and provisions will produce different outcomes[93].  In such matters, a court, performing the task of characterisation, is inescapably obliged to draw lines distinguishing constitutionally valid from constitutionally invalid provisions[94].

    [92]Re Director of Public Prosecutions; Ex parte Lawler (1994) 179 CLR 270 at 285; cf Grace Brothers Pty Ltd v The Commonwealth (1946) 72 CLR 269 at 290.

    [93]As the legislation did in Airservices Australia v Canadian Airlines International Ltd (1999) 74 ALJR 76; 167 ALR 392.

    [94]cf Residual Assco Group Ltd v Spalvins (2000) 74 ALJR 1013 at 1031 [85]; 172 ALR 366 at 390.

12. Fourthly, the mere fact that the legislation in question is otherwise valid, and that the law is indeed made for a purpose that has recommended itself to the Parliament and is apparently within power, is not sufficient to take such law outside the requirements of s 51(xxxi). On the contrary, the existence of a relevant federal "purpose" is a precondition to the application of the provision. But for the existence of such a purpose, the legislative provisions would fail at the threshold. Moreover, the purposes for which the Parliament is afforded power to make laws, at least as stated in ss 51 and 52 of the Constitution, are themselves expressed to be "subject to this Constitution". That phrase includes, where the law is properly characterised as one "with respect to ... the acquisition of property", the requirement that such law must provide "just terms"[95].

    [95]WMC Resources (1998) 194 CLR 1 at 91.

13. Fifthly, because s 51(xxxi) relates to an acquisition "from any State or person", this makes it plain that the trigger for its operation is the fact of an acquisition. It is not the taking, as such, or the fact that the Commonwealth, or one of its instrumentalities, has secured a benefit from the acquisition[96].  Not infrequently, property rights are acquired under federal law for the precise purpose of extinguishing them, that being the very object of the acquisition[97].

    [96]See eg Trade Practices Commission v Tooth & Co Ltd (1979) 142 CLR 397.

    [97]Minister of State for the Army v Dalziel (1944) 68 CLR 261 at 290; Bank of NSW v The Commonwealth (1948) 76 CLR 1; cf Georgiadis (1994) 179 CLR 297 at 305; Newcrest Mining (1997) 190 CLR 513 at 633-634.

    Were the choses in action "property"?

14. In the present context, a broad view has long been taken of "property"[98].  This fact is illustrated by many decisions, not the least of which are Georgiadis and Mewett.  The broad view adopted in Georgiadis caused a measure of surprise at the time that decision was announced[99].  As the minority judgments in Georgiadis[100] demonstrate, there were substantial arguments supporting a conclusion that the extinguishment of undetermined actual and potential claims at common law, occasioned incidentally to the attainment of large social purposes within the legislative power of the Parliament, was not the kind of "property" to which it was originally contemplated that s 51(xxxi) of the Constitution would be addressed.

    [98]Minister of State for the Army v Dalziel (1944) 68 CLR 261 at 290.

    [99]It has been said that s 51(xxxi) of the Constitution "has begun a second life": Allen, "The Acquisition of Property on Just Terms", (2000) 22 Sydney Law Review 351 at 351.

    [100]Georgiadis (1994) 179 CLR 297 at 315 per Dawson J, 320-321 per Toohey J, 325 per McHugh J. See also The Commonwealth v Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1 at 145.

15. Yet choses in action are undoubtedly a form of property known to the law.  Indisputably, they are regarded as valuable to those in whom they are vested.  Extinguishing them, where they have arisen and are vested in an identifiable person and otherwise enforceable, is plainly to deprive that person of something valuable.  If, in a general way, this Act benefits some other person under the federal law in question, it is not a large step to designate the outcome as an "acquisition of property" of the person concerned under that law.  That is the step which this Court took in Georgiadis[101].  It declined to reopen that decision in Mewett[102].  Georgiadis and Mewett therefore represent the starting points for analysis in the present case.  No party sought to reargue the correctness of those rulings in this appeal.  The respondent, supported by the Commonwealth as an intervener, submitted that the principles established by Georgiadis and Mewett were distinguishable.  The appellant argued that they were not.

    [101]Georgiadis (1994) 179 CLR 297 at 307-308 per Mason CJ, Deane and Gaudron JJ, 312 per Brennan J.

    [102]Mewett (1997) 191 CLR 471 at 503-505 per Dawson J, 512 per Toohey J, 531 per Gaudron J, 532 per McHugh J.

16. Initially, in the courts below, and ostensibly on the issues for decision in this Court, the classification of the appellant's rights as rights of "property" was not contested.  By analogy with Georgiadis[103], the appellant argued here that his right to bring an action (whether in negligence or in contract), vested in him and then extinguished by s 54 of the Seafarers Act, was "property", although the extinguishment was deferred for six months by the operation of s 13 of the Transitional Provisions Act.

    [103](1994) 179 CLR 297 at 303-304.

17. In this Court, the respondent submitted that the appellant's right of action against it was inherently susceptible to statutory alteration.  This was because, when it originally arose, the right of action lay against the respondent's statutory predecessor.  It was only continued against the respondent by force of the combined provisions of federal law[104].  Although this argument was mounted to suggest that there had been no "acquisition", it might also have afforded a basis for arguing that, whatever right was extinguished by the impugned legislation, it was not analogous to the rights at common law found to be "property" in Georgiadis and Mewett.  Instead, it was the fragile kind of statutory interest, short of "property", considered in other cases that have come before the Court[105].

    [104]ANL Act, ss 40, 65, read with Acts Interpretation Act, s 25B(2).

    [105]eg Health Insurance Commission v Peverill (1994) 179 CLR 226; WMC Resources (1998) 194 CLR 1; cf Minister for Primary Industry and Energy v Davey (1993) 47 FCR 151; Bienke v Minister for Primary Industries and Energy (1996) 63 FCR 567.

18. I would reject this argument.  The appellant's right of action against the respondent, before the respondent was reconstituted by legislation as a public company in 1988, arose under the common law.  All that the federal legislation providing for its enforcement against a statutory body of the Commonwealth and later reconstituting that body as the respondent did (read with the applicable provision of the Acts Interpretation Act 1901 (Cth)[106]) was to ensure that that right, that is, the original common law right, lay and survived against the respondent in its reconstituted form.  Specifically, the essential character of that right was not then altered by the operation upon it of the impugned legislation.  That legislation did not purport to convert the right into a mere creature of federal legislation.  It recognised the existence of the common law right prior to and independent of the provisions.  It purported to impose restrictions on the appellant's right to bring an action in respect of an injury for which, apart from the legislation, the employer would have been liable for damages at common law.

    [106]s 25B(2).

19. Although not raised by any party, a question arose during argument as to whether, by the common law, a person in the position of the appellant would have a right of action against his employer at the time and in the place that the injuries to the appellant allegedly occurred.  The suggested impediment to such a common law entitlement was the doctrine of common employment.  That doctrine was originally expounded as part of the common law in England by the Court of Exchequer in Priestley v Fowler[107].  The rule was later assumed to be part of the common law in Australia[108].  If it applied to exempt an employer (such as the respondent's statutory predecessor) from common law liability to an employee (such as the appellant) for the negligence of fellow employees, it might be concluded that the appellant enjoyed no such common law right as would constitute "property".  If this were so, he would fail at the threshold either in establishing the existence of a right at common law in the first place, or the transmission of any such "right" from one against the original employer to one against the respondent.

    [107](1837) 3 M & W 1 [150 ER 1030]. See Glass, McHugh and Douglas, The Liability of Employers in Damages for Personal Injury, 2nd ed (1979) at 228-229.

    [108]cf Chapman v Victorian Deep Leads Co Ltd (1902) 28 VLR 677.

20. There are several answers to these suggestions.  First, common employment was not in issue in the courts below.  It should not be admitted now for it would raise factual questions as to the basis of the respondent's alleged liability to the appellant that have never been explored[109].  Secondly, the doctrine of common employment was conventionally treated, in law, as a defence.  It has never been pleaded as a defence by the respondent.  No application was made to do so in this Court.  Thirdly, if such a defence had been pleaded, the appellant would appear to have been entitled to invoke the Law Reform (Common Employment) Act 1951 (WA). Section 3(1) of that Act provides that it "shall not be a defence to an employer who is sued in respect of any injury or damage caused by the wrongful act, neglect, or default of a person employed by him, that that person was at the time the injury or damage was caused in common employment with the person suffering that injury or damage". Had the defence of common employment been raised in answer to the appellant's claim, the Supreme Court of Western Australia would probably have been obliged to apply that statutory provision as a surrogate federal law. There are counterpart provisions in other Australian jurisdictions[110].

    [109]Coulton v Holcombe (1986) 162 CLR 1 at 7.

    [110]Law Reform (Miscellaneous Provisions) Act 1955 (ACT), s 21; Workers Compensation Act 1987 (NSW), s 151AA; Law Reform Act 1995 (Qld), s 3; Wrongs Act 1936 (SA), s 30; Employers' Liability Act 1943 (Tas), s 5; Wrongs Act 1958 (Vic), s 24A.

21. In light of all of these considerations, it is unnecessary to explore further the applicability of the doctrine of common employment to the current appeal[111]. I am not persuaded that this belated suggestion casts doubt on the fact that, before the impugned legislation took its purported effect, the appellant's causes of action against the respondent amounted to "property" as that word in s 51(xxxi) of the Constitution has been interpreted by this Court[112].  The appellant is thus entitled to an affirmative answer on the first issue.

    [111]cf Huddart Parker Ltd v Cotter (1942) 66 CLR 624; Union Steamship Co of New Zealand v Ferguson (1969) 119 CLR 191.

    [112]Bank of NSW v The Commonwealth (1948) 76 CLR 1 at 349; Georgiadis (1994) 179 CLR 297 at 303-304, 312, 319-320, 325; Mewett (1997) 191 CLR 471 at 503, 512, 519, 532, 535, 553; Newcrest Mining (1997) 190 CLR 513 at 573, 602.

    Was there an "acquisition" of "property"?

22. To escape the suggestion that the impugned legislation amounted to an "acquisition", the respondent, and the Commonwealth, advanced, essentially, two arguments.  The first might be called a technical one.  The second argument was more substantive.

23. The technical argument was that, unlike the legislation considered in Georgiadis and Mewett, that under consideration here did not, in its terms, extinguish any underlying causes of action belonging to the appellant.  Whereas the legislation under consideration in Georgiadis provided that "an action … does not lie"[113] (and for this reason was construed to be a purported attempt to extinguish the underlying cause of action founded on the common law), s 54 of the Seafarers Act merely provided that "a person does not have a right to bring an action or other proceedings". The section was therefore (so it was submitted) purely a procedural provision. It was, in this sense, akin to the traditional language of a statute of limitations. The underlying cause of action was unaffected. It remained untouched by the impugned legislation. All that the latter did was to deprive a person such as the appellant of the right to bring an action or other proceedings based upon the cause of action that otherwise survived.

    [113]Safety Rehabilitation and Compensation Act 1988 (Cth), s 44; cf Georgiadis (1994) 179 CLR 297 at 306; Mewett (1997) 191 CLR 471 at 557.

1. There are also statements in some of the cases which place significance on a shade of perceived difference in meaning between the word "taken" in the Fifth Amendment to the United States Constitution[170] and "acquisition" in s 51(xxxi) of the Australian Constitution. After discussing some of the authorities[171] in the United States, Mason J in The Tasmanian Dam Case said this[172]:

   "The emphasis in s 51(xxxi) is not on a 'taking' of private property but on the acquisition of property for purposes of the Commonwealth.  To bring the constitutional provision into play it is not enough that legislation adversely affects or terminates a pre-existing right that an owner enjoys in relation to his property; there must be an acquisition whereby the Commonwealth or another acquires an interest in property, however slight or insubstantial it may be."

   [170]"Fifth Amendment - Rights of Persons

   No person shall be …

   deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

   [171]His Honour's views were referred to with approval in Georgiadis (1994) 179 CLR 297 at 304 per Mason CJ, Deane and Gaudron JJ.

   [172](1983) 158 CLR 1 at 145.

2. His Honour then went on to adopt a statement by Dixon J in the Bank Nationalisation Case which referred in terms to protection against "governmental interference" with proprietary rights and not to the acquisition of any particular item of property[173]:

   "I take Minister of State for the Army v Dalziel[174] to mean that s 51 (xxxi) is not to be confined pedantically to the taking of title by the Commonwealth to some specific estate or interest in land recognized at law or in equity and to some specific form of property in a chattel or chose in action similarly recognized, but that it extends to innominate and anomalous interests and includes the assumption and indefinite continuance of exclusive possession and control for the purposes of the Commonwealth of any subject of property. Section 51(xxxi) serves a double purpose. It provides the Commonwealth Parliament with a legislative power of acquiring property: at the same time as a condition upon the exercise of the power it provides the individual or the State, affected with a protection against governmental interferences with his proprietary rights without just recompense.  In both aspects consistency with the principles upon which constitutional provisions are interpreted and applied demands that the paragraph should be given as full and flexible an operation as will cover the objects it was designed to effect."

   [173](1948) 76 CLR 1 at 349.

   [174](1944) 68 CLR 261.

3. I do not myself discern in that passage from the judgment of Dixon J, any express, or indeed implied, support for the narrow view which Mason J took of the provision in The Tasmanian Dam Case, or, for the attachment of any great significance to any distinction between a taking or an acquisition, whether perceived or actual. Indeed the statement by Dixon J that the provision has as one of its objects, the "protection against governmental interferences with … proprietary rights without just recompense" is clearly open to the interpretation that an interference with such rights, and not necessarily an acquisition of any particular right may be enough to attract the operation of s 51(xxxi). In any event, in my respectful opinion, in The Tasmanian Dam Case, it is easy to see that the Commonwealth really did acquire something, and that was a thing of immense value, the right to control virtually absolutely the use to which the area in question would be put. 

4. In my opinion there is little or no significance to be attached to any apparent shade of difference in meaning between the two words, "take" and "acquire".  In some contexts "acquisition" may even have a more expansive meaning than "taking" or "take".  "Acquire" may be used in respect of the incidental picking up of some attribute or quality.  For example, a person may acquire lustre, taste or knowledge by association or experience:  a deliberate act or decision to possess a particular attribute may not be necessary to become possessed of it. 

5. It is also difficult to reconcile the principle established before Federation (which was likely to be well known to the framers of the Constitution and which has been applied and referred to with approval in numerous cases in this Court[175]) that in assessing compensation the assessment is to be made on the basis of the value to the owner and not on the basis of what the acquiring authority may have got, with any principle that there may be no compensation unless the acquiring authority has got and holds in its hands something tangible or of value.  The very nature of the Commonwealth's powers and the flexibility and ingenuity with which they can be exercised mean that what a dispossessed owner has lost, in the hands of the Commonwealth or some other beneficiary of the Commonwealth's enactment, may assume an entirely different, even elusive shape or character, from what it possessed earlier.  After the enactment of the legislation to ensure placement of the region of the Franklin River in Tasmania upon the World Heritage List, that region remained in exactly the same natural state, and title to it continued to reside in the State of Tasmania, as it had before that enactment.  But in proprietary terms it had assumed a quite different character.  It had become an area of land from which almost all of the conventional, commercially exploitable attributes had been stripped or rendered highly conditional.  In short, almost all of the components of the sum of the property rights had been effectively taken away.  To use the language of Gaudron and Gummow JJ in the present matter, there was also "an effective sterilisation [of many] of the rights constituting the property in question"[176].  And the same might be said, to only a slightly lesser degree, of the effect of the Regulations under consideration in The Commonwealth of Australia v The State of Western Australia ("the WA Mining Act Case")[177]. 

   [175]See Stebbing v Metropolitan Board of Works (1870) LR 6 QB 37 at 41 per Cockburn CJ; The Moreton Club v The Commonwealth (1948) 77 CLR 253 at 257 per Dixon J; Commissioner of Succession Duties (SA) v Executor Trustee and Agency Co of South Australia Ltd (1947) 74 CLR 358 at 373-374 per Dixon J:

   "[T]here is some difference of purpose in valuing property for revenue cases and in compensation cases.  In the second the purpose is to ensure that the person to be compensated is given a full money equivalent of his loss, while in the first it is to ascertain what money value is plainly contained in the asset so as to afford a proper measure of liability to tax.  While this difference cannot change the test of value, it is not without effect upon a court's attitude in the application of the test.  In a case of compensation doubts are resolved in favour of a more liberal estimate, in a revenue case, of a more conservative estimate."

   [176]See the reasons of Gaudron and Gummow JJ at [22].

   [177](1999) 196 CLR 392 at 480-484 [268]-[270] per Callinan J.

6. Airservices Australia v Canadian Airlines International Ltd[178] is the last case in which this Court considered the application of s 51(xxxi) of the Constitution, and once again the Justices who were in the majority, Gleeson CJ, McHugh, Gummow, Kirby and Hayne JJ; Gaudron and Callinan JJ dissenting) did not reach their conclusion that the placitum had no application there by the same chain of reasoning. The considerations which led Gleeson CJ and Kirby J to conclude as they did were set out in this passage[179]:

   "Having regard to the relationship between the services provided by the CAA and the safety of the aircraft concerned, the reasonableness of a system which provides that those who operate aircraft must pay charges which, in totality, will defray the cost of providing the services, the possibility that operators will have few assets in the jurisdiction apart from aircraft, the mobility of aircraft, and the desirability of providing adequate security for liabilities incurred, it is at least as easy to draw a conclusion supportive of the legislation as it was in Ex parte Lawler."[180]

   [178](1999) 74 ALJR 76; 167 ALR 392.

   [179](1999) 74 ALJR 76 at 94 [100]; 167 ALR 392 at 416.

   [180]Re Director of Public Prosecutions; Ex parte Lawler (1994) 179 CLR 270.

7. McHugh J accepted that the liens created by the statutory scheme did effect an acquisition of property[181] but that the laws in question were reasonably capable of being seen as appropriate and adapted to the achievement of a purpose within the scope of s 51(i) of the Constitution and were therefore valid[182], albeit that no "just terms" were provided. 

   [181](1999) 74 ALJR 76 at 132 [329]; 167 ALR 392 at 468.

   [182](1999) 74 ALJR 76 at 138 [357]; 167 ALR 392 at 477.

8. Gummow J (with whom Hayne J agreed on this aspect[183]) summarised his opinion in the following paragraph[184]:

   "The bundle of rights and remedies held by the Authority constituted the exchange for the provision of the services. In the events that occurred, the services were provided, but the charges and penalties were not recouped to the Authority. For the Authority then to assert its rights and remedies against the respondents is not to compulsorily acquire property from the respondents with an attendant obligation of fair compensation to the respondents from the Authority. The lien provisions are not invalid as laws which must answer the condition imposed by s 51(xxxi) of the Constitution in order to be valid."

   [183](1999) 74 ALJR 76 at 166 [519]; 167 ALR 392 at 516.

   [184](1999) 74 ALJR 76 at 164 [503]; 167 ALR 392 at 512.

9. The nature of the charges imposed in Air Services and their connexion with the services provided there, and the different lines of reasoning of the majority mean that that case does not assist in the resolution of this one. 

10. In Georgiadis[185] (Mason CJ, Deane and Gaudron JJ) said that an acquisition of property may occur if the acquirer receive, as a result of what has been done, a direct benefit.  The expression, "direct benefit" I would take to be capable of embracing advantages or benefits extending beyond and not necessarily of a proprietary kind in any conventional sense as understood by property lawyers.  In all of the cases that I discuss in these reasons it is not difficult to see how the Commonwealth, or somebody else did derive some form of benefit and there is no reason to say of any of them that the benefit was not directly derived.  In The Tasmanian Dam Case the Commonwealth gained effective control[186] of a wilderness area, and, no doubt, prestige and influence with international bodies concerned with environmental and other matters.  In WMC the Commonwealth gained relief from its contractual obligations and freedom to enter into an international treaty.  In Peverill the Commonwealth gained relief from a considerable liability for payment in respect of professional services that had been performed for reward.  In the WA Mining Act Case the Commonwealth obtained a right to use land for dangerous defence activities to the exclusion of, or a substantial reduction in, the owner's right to exploit its land.

    [185](1994) 179 CLR 297 at 305.

    [186]cf a negative covenant:  See the WA Mining Act Case (1999) 196 CLR 392 at 488‑489 [282]-[283] per Callinan J.

11. So too, the legislation considered in Waterhouse v Minister for the Arts & Territories[187], could only have had one purpose, to reserve the right to retain, ultimately for the Australian community, works of art and other objects, albeit that they might be and remain in private hands indefinitely.  There could be no doubt that what the owner of the property in question might lose (if an export permit were refused) was considerable, the right to sell the painting on the more lucrative international market.  And other rights, to sell a mortgage would also have been adversely affected because of its reduced value on that account.  Furthermore, it is difficult to resist the inference that there was an underlying purpose in the legislation, to enable eventually the acquisition of the painting by some Commonwealth or public authority or museum, at a local and not an international price.  The right to restrict or limit the number of buyers in a market place, especially one in which the party enjoying the right is a potential purchaser, is clearly a valuable right.   

    [187](1993) 43 FCR 175 (Black CJ, Lockhart and Gummow JJ).

12. Another strand in some of the decisions is that a law will not be a law with respect to the acquisition of property on just terms unless it has a distinct character in that regard.  This was the language which was most recently used by Mason CJ, Deane and Gaudron JJ in Georgiadis[188].  Earlier their Honours had pointed out that there will inevitably be borderline cases in which the question whether the law bears the distinct character of a law with respect to the acquisition of property is finely balanced[189].

    [188](1994) 179 CLR 297 at 308.

    [189](1994) 179 CLR 297 at 308.

13. I would, with respect, make two observations about that statement.  First, it is important to bear in mind that when the task of characterisation is to be undertaken it is not simply the task of deciding whether the law bears the distinct character of a law with respect to the acquisition of property, but whether it bears the distinct character of a law "with respect to the acquisition of property on just terms".  And if it does not it cannot be valid.  Attention needs to be focused on the whole expression for the purposes of characterisation.  As Kirby J said in WMC[190]: 

    "Each word of s 51(xxxi) is important and has been scrutinised by this Court. But it is essential to view the paragraph as a whole. In particular, the acquisition of property is a compound conception[191]. There is a danger in dissecting the words that the achievement of the purposes of the paragraph as a guarantee may be lost."         

    [190]Commonwealth of Australia v WMC Resources Ltd (1998) 194 CLR 1 at 90-91 [237].

    [191]Re Director of Public Prosecutions; Ex parte Lawler (1994) 179 CLR 270 at 285; cf Grace Brothers Pty Ltd v The Commonwealth (1946) 72 CLR 269 at 290.

14. The second observation is that the statement itself acknowledges the difficulty of characterisation.  A distinction may be very much in the eyes of the beholder.  When what has been acquired is some form of benefit rather than an item of property as pedantically defined, or is of an innominate kind, its character is very likely to present problems of identification.  It would not be surprising in those circumstances if the law in question, asserted to be effecting an acquisition, were itself to present problems of distinct characterisation. 

15. Another strand of authority holds that a law which is not directed towards the acquisition of property as such but involves the adjustment of competing claims is unlikely to be a law with respect to the acquisition of property. 

16. Language to this effect was used by Mason CJ, Brennan, Deane and Gaudron JJ in Australian Tape Manufacturers Association Ltd v The Commonwealth[192] and repeated by those Justices and Toohey and McHugh JJ in Nintendo Co Ltd v Centronics Systems Pty Ltd[193]: 

    "The cases also establish that a law which is not directed towards the acquisition of property as such but which is concerned with the adjustment of the competing rights, claims or obligations of persons in a particular relationship or area of activity is unlikely to be susceptible of legitimate characterization as a law with respect to the acquisition of property for the purposes of s 51[(xxxi)] of the Constitution.[194]"

    Their Honours' statement, in my respectful opinion, poses a test quite different from that mandated by the Constitution: whether a law is "directed towards the acquisition of property as such", and not, as the Constitution requires, whether it is a law with respect to the acquisition of property on just terms. The concepts are too different from each other for the former to shed very much light on the latter.

    [192](1993) 176 CLR 480 at 510.

    [193](1994) 181 CLR 134 at 161.

    [194]See, for example, Mutual Pools & Staff Pty Ltd v The Commonwealth (1994) 179 CLR 155 at 171-173, 177-178 and 188-189; Re Director of Public Prosecutions; Ex parte Lawler (1994) 179 CLR 270 at 285-286; Health Insurance Commission v Peverill (1994) 179 CLR 226 at 236-238; Georgiadis vAustralian and Overseas Telecommunications Corporation (1994) 179 CLR 297 at 305-308.

17. In Mutual Pools & Staff Pty Ltd v The Commonwealth Deane and Gaudron JJ said that a law will generally not be a law for the acquisition of property if it provides for[195]:

    " … the creation, modification, extinguishment or transfer of rights and liabilities as an incident of, or a means for enforcing, some general regulation of the conduct, rights and obligations of citizens in relationships or areas which need to be regulated in the common interest."

    I would respectfully make three comments about this passage. The operation of the Constitution may not be subverted because an activity might only produce a proscribed consequence incidentally, or because it occurs as a result of an enforcement process undertaken under some other purported head of power. Were it otherwise the Commonwealth would be able to achieve indirectly what it may not do directly.

    [195](1994) 179 CLR 155 at 189-190.

18. Much legislation affecting private property enacted by the Commonwealth acting bona fide will seek to adjust, effect or resolve competing claims, the claims of the persons adversely affected by it on the one hand, and the claims for the greater good of the community at large advantaged by it on the other. The statements in the cases about competing rights and obligations have generally not defined the rights and obligations in question, or made clear what the competition is, whether between rights and rights, or obligations and rights, or what "rights" are so fragile that they must give way to some other right or obligation. And nor have they said whether there must be any reciprocity of right and obligation. Some would argue that there are very few areas of human conduct, or of rights and obligations, or of relationships between citizens, which do not call for some general regulation in the common interest. In short, much of the business of government is the general regulation of the conduct, rights and obligations of citizens, but that regulation must, like any other governmental activity, be conducted within the constitutional framework and not otherwise. I am unable to accept that if an acquisition occurs in such a situation (taxation and duties apart) as a means of enforcing regulation, the Commonwealth may escape liability to pay for the property which has been acquired whether incidently or directly as a result thereof. And, I would think that any view to the contrary would be generally regarded today, just as it would have been by the Founders, as a startling one. Why, it might be asked, should the legislation, which destroyed Dr Peverill's chose in action against the Commonwealth, be any more or less an adjustment of rights in the common interest than the deprivation of Mr Georgiadis' cause of action against his employer in circumstances in which a scheme of compensation without fault was to be substituted for common law rights? The test of what I will call for convenience, "general regulation" has two other defects. It is inconsistent with the long established principle that s 51(xxxi) is a constitutional guarantee. And it is too imprecise and subjective in my opinion for general application.

19. Yet another strand in the cases is the view expressed by McHugh J in Peverill[196] and which his Honour applied again in WMC, that in circumstances in which no specific property right previously existed under State or general law, the Commonwealth Parliament retained the authority to extinguish that right, even if in consequence some property or benefit became vested in the Commonwealth or some other person[197]. 

    [196](1994) 179 CLR 226 at 260.

    [197](1998) 194 CLR 1 at 56-57 [146].

1. In my opinion there will be difficulty in seeking to apply such a far‑reaching proposition literally.  Take the case of estates or interests granted by the Commonwealth in the Australian Capital Territory after the seat of government was established there, under legislation[198].  At least arguably those estates or interests in land had no existence before, and depended entirely for their existence upon the making of the relevant provisions by the Commonwealth.  It seems unlikely that the Commonwealth, having conferred specific extensive proprietary rights that did not previously exist in the Territories, might retain the power to extinguish those rights without compensation.  So too, patents and copyrights, as pointed out by Gummow J in WMC[199], subsist under Commonwealth law, and, subject to the special considerations affecting them to which his Honour referred, constitute property to which s 51(xxxi) of the Constitution applies. I do not think that legislation which withdraws or alters pension entitlements provides a true analogy. Those entitlements arise as a result of general revenue raising for those purposes and are not entitlements arising out of any identifiable payment, forbearance or service made or performed by any particular person. It is highly unlikely that Dr Peverill would have done the professional work that he did or have done it in the way that he did but for the statutory promise by the Commonwealth to make payment in respect of it.

   [198]See, for example, the Real Property Ordinance 1925-1938 (ACT), s 17. 

   [199](1998) 194 CLR 1 at 70-74 [184]-[199].

2. Gummow J stated a narrower principle in WMC, a test of inherent susceptibility to change or termination.  His Honour's opinion was that the permit to explore there suffered from a congenital infirmity[200], of being subject to the legislation in the form it might assume from time to time, and that therefore any proprietary rights in respect of the permit were liable to defeasance, which, upon its occurrence would not attract compensation[201].

   [200]cf Norman v Baltimore & Ohio Railroad Co 294 US 240 at 308 (1935).

   [201](1998) 194 CLR 1 at 75 [203].

3. In his reasons in WMC, Gummow J said[202]:

   "The present case has an affinity to, but is not on all fours with, those cases involving gratuitous payments, whether as pensions or otherwise, made by the Executive Government under statutory authority.  It has been said that the 'rights' to receive such payments are the creation of the legislature and are always liable to alteration or abolition by later legislation.[203]"

   [202](1998) 194 CLR 1 at 73 [197].

   [203]Allpike v The Commonwealth (1948) 77 CLR 62 at 69, 76-77; Health Insurance Commission v Peverill (1994) 179 CLR 226 at 245, 256, 263-265; cf the proprietary nature of statutory rights to compensation payments under federal compulsory acquisition schemes, National Trustees Executors and Agency Co of Australasia Ltd v Federal Commissioner of Taxation (1954) 91 CLR 540 at 557‑558, 571-572, 580-587.

4. His Honour then went on to emphasise that the enactment under which the permits had been granted included the definition of a permit "as varied for the time being under [the] Act".  His Honour also referred to another section which provided that[204]: 

   "A permit … authorises the permittee, subject to [the] Act … to carry on such operations … as are necessary for that purpose, in the permit area".  (original emphasis)

   [204](1998) 194 CLR 1 at 74 [199].

5. These provisions brought his Honour to the conclusion that from the moment of its grant the scope and incidents of the permit were subject to amendment of the form in which it had been granted.  It followed that his Honour thought that any property rights to which the permit gave rise were liable to defeasance[205].  His Honour was of this opinion notwithstanding that the enactment recognised that the permits and dealings there had commercial value and that rights and obligations were created inter partes by them which were supported by the law of contract and the general law; that the subsequent legislation diminished the commercial value of the permits; that the Commonwealth was advantaged in that its international law obligations to Indonesia were more likely of fulfilment[206]; and, that there is a real difference between a "variation" and an effective revocation of a permit. 

   [205](1998) 194 CLR 1 at 75 [203].

   [206](1998) 194 CLR 1 at 72-73 [193].

6. I have, with respect, several concerns about the ways in which their Honours have stated the various propositions to which I have referred.  Very few enactments over time remain unamended.  I do not think that because an enactment may make specific reference to the possibility of a change to it, or to the nature of rights and interests created by or arising under it, that enactment is necessarily to be singled out from other legislation silent about such a possibility.  The position might be different if the legislation were to make provision, in terms, at the outset, for the possible extinguishment, without compensation of rights and interests created by or arising under it[207].  The Commonwealth, in order to undertake the ordinary business of government enters into innumerable commercial engagements.  This is a matter of heightened significance in current times in which some corporations are either wholly or partly owned and controlled by government but are exhorted to deal and act commercially[208], and in which "outsourcing" is strongly encouraged. The capacity of the Commonwealth to engage and act in this way, and the attractiveness of it as a contracting party to others, must depend, even without recourse to the Constitution, upon an underlying assumption that the Commonwealth will neither arbitrarily nor otherwise generally repudiate its obligations, however created, without compensation. The Constitution should, and in my opinion does, by s 51(xxxi) underpin that assumption as a literal guarantee of it. I would with respect adopt what was said by Kirby J (dissenting) in WMC[209]:

   "One of the institutional strengths of the Australian economy is the constitutional guarantee of just terms where the property interests of investors are acquired under federal law.  This Court should not undermine that strength by qualifying the guarantee. Neither the Court's past authority not economic equity require such a result.  If it can happen here it can happen again and investors will draw their inferences."  

   [207]See, for example, the Mining Regulation prescribing forms of grant in Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 618 per Gummow J.

   [208]cf Puntoriero v Water Administration Ministerial Corporation (1999) 73 ALJR 1359 at 1376 [86]; 165 ALR 337 at 360.

   [209]Commonwealth of Australia v WMC Resources Ltd (1998) 194 CLR 1 at 102 [259].

7. It follows that I do not think that a right to compensation should turn upon the way in which rights have originally arisen or have been created, whether by statute or otherwise. 

8. And the assumption to which I have referred has a close affinity with another assumption, that a responsible government will only unusually, and perhaps only in highly exigent circumstances act in such a way, retrospectively or otherwise, to take away something granted and owned, or lawfully enjoyed, and for which payment or consideration has been made or provided, or upon which effort or money has been expended.  Furthermore, notwithstanding some of its imperfections and susceptibility to legislative and executive change, the permit in WMC still answered the description of property, "pedantically" defined by Lord Wilberforce in National Provincial Bank Ltd v Ainsworth[210]: 

   "Before a right or an interest can be admitted into the category of property, or of a right affecting property, it must be definable, identifiable by third parties, capable in its nature of assumption by third parties, and have some degree of permanence or stability." 

   [210][1965] AC 1175 at 1247-1248.

9. Although Toohey J was in dissent in WMC his observations about the nature of the permit there cannot, in my respectful opinion, be gainsaid[211]:

   "The rights attaching to the Permit were transient, only in the sense that they lasted as long as the Permit lasted.  But the Permit was for a finite term and capable of renewal for finite terms.  The fact that the Commonwealth was not obliged to renew the Permit has a bearing upon its value.  But it does not carry the consequence that, during any period of its operation, the Permit did not confer rights capable of acquisition.[212]"

   [211](1998) 194 CLR 1 at 29 [54].

   [212]See also (1998) 194 CLR 1 at 92-97 [238]-[247] per Kirby J (dissenting).

10. It is unnecessary however in this case for me to give further consideration to these last strands of reasoning by McHugh and Gummow JJ because Georgiadis holds that rights of the kind enjoyed by the appellant here before the enactments were common law rights, and not rights conferred by, or arising as a result of legislation of the Commonwealth, either conditionally or otherwise.  (The reasons why this is so are fully explained by Gaudron and Gummow JJ in their judgment in this case and require no repetition by me.)

11. The various strands in the cases that I have discussed which sit uncomfortably with, and indeed, cannot, in my opinion be reconciled with the language of s 51(xxxi) itself, and the strong statements of earlier Justices of the Court about the strength and nature of the constitutional guarantee to which s 51(xxxi) gives effect, were all relied on, by either the respondent or the Attorney-General for the Commonwealth, who intervened to support the respondent. Such are my doubts and reservations, that to the extent that I were free to do so, I would not follow and adopt those strands of reasoning. Their very diversity, and, in my view, inconsistency with the precepts to which I first referred, dictate the need for the application of those well settled precepts if proper effect is to be given to s 51(xxxi) as a genuine constitutional guarantee. I need however say no more about them as I do think that this case may, and should be resolved by reference to what was unanimously decided in Georgiadis.  But it is necessary, before stating my reasons for that conclusion, to deal with a separate argument that was presented by the respondent.

12. The respondent submitted that it is necessary to compare the "substance" of what the appellant had immediately before the enactment, with the "substance" of what he had after it, and argued that in each instance, it was the same, a right to sue for breach of duty.  I do not think that the question in this case can be answered by seeking to discover and define the "substance" of a right or interest.  The requirement that what has to be assessed in acquisition cases is the value to the owner of the lost right or interest, denies that its value is to be confined to one only, even predominant attribute or quality that it possesses.  The proper approach is to look to all of the advantages or benefits that the property, right or interest carries or has.  The right possessed by this appellant here before the enactments was a considerably more ample right than that with which he was left afterwards.  He had previously had available to him the right to sue at any time during a relatively long period.  Just how long a period depended upon the jurisdiction in which he chose to sue.  Afterwards his right in this regard was truncated by the provision that it would be completely lost within six months after the enactment.  The loss or disadvantage occurring as a result of the enactment may not have been as great as the loss sustained by the appellant in Georgiadis, but there was nonetheless a loss.  The difference is one of degree only and goes to value rather than to characterisation. 

13. I am therefore of the opinion that there has been an acquisition of property in this case. The acquisition was of a right to sue within a period of more than six months. The right was a common law right. The limitation provision in s 54 of the Seafarers Act had a substantial and real impact upon the appellant.  It was not a mere procedural provision as the Commonwealth contended[213].  What has been acquired is the extinction of that extended right.  No provision has been made for the assessment, or the payment of compensation in respect of that acquisition.  The provisions therefore have no valid operation in relation to this appellant's cause of action. 

    [213]See John Pfeiffer Pty Ltd v Rogerson (2000) 74 ALJR 1109 at 1127-1128 [103] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ, 1133-1134 [131]-[134] per Kirby J, 1146 [199] per Callinan J; 172 ALR 625 at 651, 659-660, 677.

14. It was argued here that because the legislation made provision for a no‑fault scheme of compensation in lieu of common law rights, it involved no more than an adjustment of competing rights and obligations.  I have expressed my opinion about such a test.  But in any event, in Georgiadis the advent of a new scheme and regime for workers did not avail the Commonwealth there.   

15. Some attention was paid during argument to the question whether the respondent had been, or continued to be, the Commonwealth or an emanation of it in the same way as the Commonwealth Bank was held to be in the Bank Nationalisation Case[214]. It is unnecessary to explore that matter as s 51(xxxi) of the Constitution is not confined in its operation to acquisitions by the Commonwealth itself[215].

    [214](1948) 76 CLR 1 at 157, 162 per Latham CJ.

    [215]Australian Tape Manufacturers Association Ltd v The  Commonwealth (1993) 176 CLR 480 at 510-511, 526.

16. Earlier, I pointed out that the fact that the value of the property acquired might not be great, or that it might be very difficult to calculate, was not a reason for holding that property had not been acquired. I suspect that the "property" which has been lost here is not of any very large value in strict monetary terms and that its calculation would be difficult and very much a matter of opinion. This quite frequently is so in compensation cases when truly comparable situations are absent. A valuation of what the appellant has lost would require, I think, assessments, of the jurisdiction in which he was most likely to sue, of his likely prospects of success and the quantum of his damages, of when he would have been likely to recover damages, and, the making of a comparison between what he would have retained by way of compensation and damages had he sued and succeeded, with what he might obtain and retain under the scheme which the enactment established. The value that all of those might establish would fall for calculation on my view as at the date of the enactment of s 54 of the Seafarers Act.  That in my opinion was the act of acquisition because it there and then cut down the right that the appellant possessed, the right to sue within a period extending beyond six months.  Sometimes value to the acquirer may be, and sometimes may not be, the same as the value to the dispossessed owner.  However, the former may provide a yardstick for the latter.  A possible question might be whether a valuer, advising a person purchasing the business of the respondent, would be likely to value it immediately after the enactment as having a certain increased value as a result of the likely or possible relief from liability, from the appellant's claim, taking into account the risks and contingencies involved generally in litigation.  That the calculation might be a very difficult one to make, can provide no answer to invalidity.  The defect here is that the legislation makes no provision for just terms, that is to say the payment and assessment of compensation in an appropriate way, the proper basis for the calculation which may itself be a matter upon which minds might well differ[216]. But on any view s 13 of the Transitional Provisions Act did not, in this case, provide just terms for the deprivation, that is also to say, the acquisition by the respondent, of the appellant's right to sue within a longer period. 

    [216]cf Commonwealth of Australia v State of Western Australia (1999) 196 CLR 392 at 461-462 [193]-[196] per Kirby J, 491 [290] per Callinan J.

17. I would allow the appeal.  I would join in the orders proposed by Gaudron and Gummow JJ.