Case study: The Castle

The 1997 Australian movie The Castle offers a quaint but misleading example of a High Court challenge and constitutional interpretation.

In The Castle, Daryl Kerrigan (Michael Caton) and his family live happily in a modest suburban house that borders an airport. They receive a visit from a local government valuer, followed by a compulsory purchase order from Airlink. A private corporation operating as a government authority, Airlink orders the seizure and bulldozing of several private homes, to create space for the construction of an additional runway.

Determined not to lose his home, Daryl employs Dennis Denuto, an incompetent suburban solicitor, to challenge the order in the Federal Court (the Commonwealth equivalent of a State Supreme Court). With no legal argument – other than the Airlink order being against “the vibe” of the Constitution – Denuto loses the case. The Kerrigans looks certain to be ejected from their home.

Daryl happens to meet retired constitutional lawyer Lawrence Hammill (Charles Tingwell) who has learned of his plight. Hammill offers to represent Daryl pro bono (for no fee) and challenge the ruling in the High Court.

Appearing in court, Hammill argues the compulsory acquisition of the Kerrigan home is not supported by Section 51(xxxi) of the Constitution, a specific power that permits the Commonwealth to order “the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws”.

While the barristers representing Airlink suggest the compulsory purchase order is necessary for the greater good, Hammill focuses extensively on the phrase “on just terms”, suggesting that the ‘founding fathers’ who drafted the Constitution had a much broader interpretation of the phrase than simple financial compensation – and that they would acknowledge the strong sentimental attachment the Kerrigans attach to their home.

Hammill and Kerrigan win their day in court, despite Hammill’s argument being more about emotion than constitutional law (this is the movies, after all). However what The Castle does provide is an example of how High Court challenges can hinge on one short, single phrase of the Constitution. Author Paul Bergman dismisses the legal premise of The Castle, writing that:

“While The Castle is quite stirring, it is legal nonsense. A person whose house is seized by government through the process of compulsory acquisition cannot stop the process. The property owner is entitled to compensation that is fair, otherwise, public projects could never be built. There would be no highways, airports or high-voltage power lines if one single, stubborn homeowner could stop the process.”

In real life, there have been many tests of Section 51(xxxi). The High Court’s interpretation of this section – both about what constitutes property and the meaning of “on just terms” – has proved quite broad. The court has defined “property” not only as land but also as rental rights, shares, intellectual copyright and hereditary entitlements.

Any Commonwealth law that claims or infringes on those or other forms of property could potentially be challenged on the “just terms” provision of Section 51(xxxi). In Newcrest Mining Ltd v Commonwealth (1997), the High Court overturned the Federal government’s decision to extend the boundaries of Kakadu National Park, which effectively nullified a number of mining leases held by Newcrest.

In 2007 Telstra also referred to Section 51(xxxi), when it challenged Commonwealth government restrictions on what Telstra could charge competitors for accessing its broadband infrastructure.