High Court of Australia

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

240 CLR 140; 84 ALJR 87; 261 ALR 653

9 Dec 2009

Case Number: S24/2009

Before

French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel, Bell JJ

Catchwords

Constitutional law (Cth) – Powers of Commonwealth Parliament – Agreement between Commonwealth and a State – National Water Commission Act 2004 (Cth) authorised Chief Executive Officer ("CEO") of National Water Commission to enter into funding agreement with State – Whether CEO authorised to enter into funding agreement with State for purpose of State acquiring property on other than just terms – Whether legislative power conferred by s 96 of Constitution, or by s 96 with s 51(xxxvi), is subject to limitations contained in s 51(xxxi) – Relevance of distinction between coercive and non-coercive legislative power.

Constitutional law (Cth) – Powers of Commonwealth Parliament – Acquisition of property on just terms – Plaintiffs held bore licences under Water Act 1912 (NSW) ("Water Act") – Plaintiffs' licences replaced with aquifer access licences under Water Management Act 2000 (NSW) – Whether Water Act divested common law rights with respect to extraction of groundwater – Whether plaintiffs' Water Act licences property within s 51(xxxi) of Constitution – Whether replacement of licences amounted to acquisition of property.

Words and phrases – "abstraction", "acquisition", "coercive and non-coercive power", "control", "just terms", "property", "the use and flow".

Constitution – ss 51(xxxi), 51(xxxvi), 61, 96.

Irrigation – Water, Crown Lands and Hunter Valley Flood Mitigation (Amendment) Act 1966 (NSW), s 3.

National Water Commission Act 2004 (Cth) – s 24.

Water Act 1912 (NSW).

Water Management Act 2000 (NSW)
– s 45(1), Sched 10, item 3.

Water Rights Act 1896 (NSW) – s 1(I).
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