Page:JT International SA v Commonwealth of Australia.pdf/74

Heydon J

In view of the enormous amounts of money which would probably be needed to provide just terms, the possibility of evasion in relation to the impugned legislation cannot be ruled out. The structure of that legislation is very strongly motivated by an altruistic desire to improve public health – or rather the health of Australian residents, as distinct from foreigners, for the legislation sees it as satisfactory to let exporters purvey lies and death to them. But improving (local) public health is not the fundamental concern of the impugned legislation. Its fundamental concern is to avoid paying money to those who will be damaged if that desire to improve (local) public health is gratified in the manner which the legislation envisages. Section 15(1) of the TPP Act provides:

"This Act does not apply to the extent (if any) that its operation would result in an acquisition of property from a person otherwise than on just terms."

There is no provision for just terms in the TPP Act. Thus, faced with a choice between protecting local public health at the price of compensating the proprietors and not protecting local public health at all, the legislature chose the latter course.

In Smith v ANL Ltd, Callinan J argued, not implausibly, that the distinctions between interfering with rights and acquiring rights, and between taking rights and acquiring rights, were not of significance. The decision of the present cases does not require a journey of that distance.

In the Tasmanian Dam Case, Deane J stated that an acquisition for s 51(xxxi) purposes could arise where the effect of a legislative prohibition or regulation "is to confer upon the Commonwealth or another an identifiable and measurable advantage or is akin to applying the property, either totally or partially, for a purpose of the Commonwealth". (emphasis added) Earlier, Deane J had quoted Dixon J's statement in Bank of NSW v The Commonwealth that s 51 (xxxi) :