ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51

HIGH COURT OF AUSTRALIA

FRENCH CJ,

GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ

ICM AGRICULTURE PTY LTD

ABN 32 006 077 765 & ORS PLAINTIFFS

AND

THE COMMONWEALTH OF AUSTRALIA & ORS DEFENDANTS

ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51

9 December 2009

S24/2009

ORDER

Order that the questions stated in the special case be answered as follows:

Question 1: By reason of s 51(xxxi) of the Constitution:

(a) did the Commonwealth lack executive power to enter into the Funding Agreement?

(b) is the [National Water Commission Act 2004 (Cth)] invalid insofar as it authorised the CEO to enter into the Funding Agreement on behalf of the Commonwealth?

Answer: The replacement of the plaintiffs' bore licences did not constitute an acquisition of property within the meaning of s 51(xxxi) of the Constitution. Accordingly, the questions of invalidity posed in paragraphs (a) and (b) of Question 1 do not arise.

Question 2: If the answer to either part of Question 1 is "yes", are all or any of:

(a) the Amendment Regulation;

(b) the Proclamation;

(c) the Amendment Order;

invalid or inoperative as a consequence?

Answer: Does not arise.

Question 3: Do the plaintiffs remain the holders of all or any of the bore licences issued to them under the [Water Act 1912 (NSW)]?

Answer: No.

Question 4: If the answers to Questions 2 and 3 are "no", do the plaintiffs have an implied right under the Constitution to recover from the Commonwealth such compensation for the loss of their bore licences as would constitute "just terms" within the meaning of s 51(xxxi) of the Constitution?

Answer: Does not arise.

Question 5: Who should pay the costs of this Special Case?

Answer: The plaintiffs.