PJ Magennis Pty Ltd v Commonwealth [1949] HCA 66

High Court of Australia Latham C.J. Rich, Dixon, McTiernan, Williams and Webb JJ. PJ Magennis Pty Ltd v Commonwealth [1949] HCA 66

ORDER Demurrers overruled. Leave to defendants to plead on or before 10th January 1950. Plaintiff to be at liberty to apply to a single Justice for such relief as it may be advised.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 21 Latham C.J.

The Commonwealth Parliament and the Commonwealth Government are limited in the exercise of the power to acquire property by the constitutional requirement that any Commonwealth law with respect to the acquisition of property must provide for just terms of acquisition: Commonwealth Constitution, s. 51 (xxxi.). This constitutional provision requires the terms actually to be just and not merely to be terms which the Parliament may consider to be just. State Parliaments are not bound by any similar constitutional limitation. They, if they judge it proper to do so for some reason, may acquire property on any terms which they may choose to provide in a statute, even though the terms are unjust. The legislation the validity of which is challenged by the plaintiff company in this action is designed to escape from the constitutional limitation contained in the Commonwealth Constitution by using State legislative powers under an agreement made with the Commonwealth and approved by the Commonwealth Parliament for the purpose of acquiring land upon terms set out in the agreement, the Commonwealth subsidizing the State in its expenditure for this purpose. The land is to be acquired for the settlement of ex-servicemen, which is clearly a Commonwealth purpose, being a purpose in respect of which the Commonwealth Parliament has power to make laws under s. 51 (vi.) of the Commonwealth Constitution—power to make laws with respect to defence. The agreement provides that the land is to be paid for at a value not exceeding that ruling on 10th February 1942.