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Dist Telstra Corp V Hurswille
(2000) 105 OF AUSTRALIA.
Cons Jujckenden v enor co) 91 FCR
[HIGH COURT OF AUSTRALIA.]
THE MINISTER OF STATE FOR THE ARMY Appetiant;
DALZIEL : i. : . 5 A 7 i
Constitutional Law—National security—Acquisition of property—Haclusive possession 1 ¢,
RESPONDENT,
AND
RESPONDENT. CLAIMANT,
ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.
taken for indefinite period— Just terms "—Regulation empowering orders fixing basis of compensation — Taking of possession assumed by regulation not to be acquisition—Order thereunder precluding compensation for loss of profits or occwpation—Validity—Severability—The Constitution (63 & 64 Vict. c. 12), 8. 51 (xaxi.)—National Security Act 1939-1943 (No. 15 of 1939—No. 38 of 1943), s. 5—National Security (General) Regulations (S.R. 1939 No. 87—1943 No. 99), regs. 54, 60a (5), 60H—Basis of Compensation Order—Acts Interpreta- tion Act 1901-1941 (No. 2 of 1901—No. 7 of 1941), . 46 (b).
The taking under reg. 54 of the National Security (General) Regulations;by the Commonwealth for an indefinite period of the exclusive possession of property constitutes an acquisition of property within the meaning of s. 51 (xxxi.) of the Constitution.
So held by Rich, Starke, McTiernan and Williams JJ. (Latham C.J. dissenting).
Reg. 60 of the National Security (General) Regulations does not provide just terms within the meaning of s. 51 (xxxi.) of the Constitution in respect of such a taking of possession by the Commonwealth, in that it proceeds on the footing that the taking is not an acquisition and purports to empower the Minister to make an order providing a basis of compensation not constituting just terms, Therefore reg. 604 and the Basis of Compensation Order made thereunder (which precludes compensation for loss of profits or occupation in
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