Page:JT International SA v Commonwealth of Australia.pdf/88

Heydon J

Georgiadis v Australian and Overseas Telecommunications Corporation, Brennan J said:

"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."

That passage has been approved by Gleeson CJ. It is the furtherance of the public interest which moves the legislature to enact legislation acquiring property, thereby creating the occasion for an inquiry into whether "just terms" have been provided. But the furtherance of the public interest is not a reason to deny just compensation to the property owner. To hold otherwise is significantly to weaken the effectiveness of s 51(xxxi) as a constitutional guarantee. The Commonwealth's submission must therefore be rejected.

The Commonwealth contended that if, contrary to all its submissions, there had been an acquisition otherwise than on just terms, the TPP Act would not apply pursuant to s 15(1) of that Act. However, if the whole TPP Act apart from s 15(1) would result in an acquisition otherwise than on just terms, the whole Act fails, and s 15(1) would result in the whole of it not applying. The whole TPP Act apart from s 15(1) is in truth invalid because its central provisions collide with s 51(xxxi). This litigation is not an appropriate vehicle in which to decide whether legislation in the form of s 15(1) would have been valid if only parts of the TPP Act had been invalid.

In 1979, in Trade Practices Commission v Tooth & Co Ltd, Mason J said :