Lee v Commonwealth of Australia [2014] FCA 432

FEDERAL COURT OF AUSTRALIA

Lee v Commonwealth of Australia [2014] FCA 432 Citation: Lee v Commonwealth of Australia [2014] FCA 432

Parties: DANIEL THOMAS LEE and GRAEME PETER JAMES GROPLER v COMMONWEALTH OF AUSTRALIA and MURRAY DARLING BASIN AUTHORITY

File number: VID 1129 of 2012

Judge: NORTH J

Date of judgment: 2 May 2014

Catchwords: CONSTITUTIONAL LAW – challenges to validity of the Water Act 2007 (Cth) – Act creates Basin Plan to increase environmental flows in the Murray-Darling Basin – Basin Plan sets limits on levels of water extraction for irrigation – Government policy to purchase water entitlements to increase environmental flows – claims pursuant to ss 99 and 100 of the Constitution – principle in Morgan v Commonwealth (1947) 74 CLR 421 – whether Act made or capable of being made pursuant to trade and commerce power, s 51(i) of the Constitution – characterisation – claim pursuant to s 92 of the Constitution – whether Act discriminates against interstate trade and confers protection on intrastate trade and commerce – whether some differences in extraction limits and trading limits on trade in water entitlements discriminate against interstate trade and commerce – claim that Act infringes the principle in Melbourne Corporation (1947) 74 CLR 31 – whether Act curtails the capacity of Basin States to function as such – claim pursuant to s 101 of the Constitution – whether applicants have standing to bring claim – whether have special interest beyond an emotional or intellectual satisfaction – s 254 of the Act – claim that water entitlements were acquired from the applicants other than on just terms – whether property acquired from the applicants – whether measurable advantage conferred on Commonwealth Held: no infringement of ss 99 and 100 – challenged provisions not made or capable of being made pursuant to s 51(i) – rather, exercise of power to legislate in respect of external affairs, s 51(xxix) – Act does not infringe s 92– Act does not discriminate between inter and intrastate trade in a protectionist sense – differences in extraction limits between different areas not directed to trade and commerce – trading limits on trade in water entitlements established pursuant to State laws – no infringement of Melbourne Corporation principle – no curtailment of the capacity of Basin States to function as such – Act directed to State control of natural resources – directed to setting and enforcing limits on extraction of water – s 101 claim – no special interest established – s 254 claim – reduction in water entitlements does not amount to acquisition of property – deprivation of rights – ICM Agriculture v Commonwealth (2009) 240 CLR 140 – no property acquired by the Commonwealth PRACTICE AND PROCEDURE – application pursuant to s 31A Federal Court of Australia Act 1976 (Cth) – whether applicants in the proceeding have no reasonable prospect of successfully prosecuting the proceeding – Spencer v Commonwealth (2010) 241 CLR 118 Held: applicants have no reasonable prospect of success on each of the constitutional challenges – proceeding dependent on proposition of law which would contradict binding High Court authority in Morgan and subsequent cases – judgment under s 31A for the respondents in the proceedings