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Westco Lagan v Attorney-General

7 Pages Posted: 19 Dec 2012 Last revised: 19 Oct 2015

Sir Geoffrey Palmer QC

Victoria University of Wellington - Faculty of Law

Date Written: 2001

Abstract

The case Westco Lagan Ltd. v. Attorney-General [2001] 1 NZLR 40 (HC) contains as rich a mixture of constitutional issues as it is possible to assemble in a single case in a country with an unwritten constitution. In these remarks the author concentrates upon the property aspects of the decision and considers legal approaches to property and the law. The issue of alleged government interference with property rights arises surprisingly frequently in New Zealand public law, in a number of different contexts involving government regulatory activity. It is a recognised principle that the state should not appropriate private property for a public purpose without just compensation. But that is only one very clear form of expropriation; issues arise on many occasions outside the context of the compulsory taking of land for public purposes. The transaction costs involved in arguing about property rights and expropriation are quite considerable where there are no plain ascertainable principles.

The article briefly explains the facts of Westco Lagan v. Attorney-General before turning to the arguments put forward and the outcome of the case. An argument was made based on the Magna Carta that the provision in the disputed Bill denying liability to pay compensation was inconsistent with the terms and principles of the Magna Carta. It was an expropriation of property rights otherwise than in accordance with the law of the land. This argument, along with others based on the Bill of Rights Act, was unsuccessful; the Judge held that Parliament can pass any legislation it sees fit and in particular, Parliament can enact laws expropriating property without compensation. From the perspective of the author, the decision is, though not adventuresome, in accordance with the orthodox understanding of existing law.

The author then turns to the second part of discussion, asking if it is up to Parliament to give and take away rights and to provide compensation, what did Parliament do about it or say about it? Though there was mention of private property rights during the readings of the Bill in Parliament, it cannot be said that property rights points were extensively pursued, nor were they pursued with any great detail. The paper discusses protection for private property in the Bill of Rights Act and in common law, noting that the absence of express protection for private property rights in New Zealand’s constitutional documents does not preclude the protection of those rights under common law. It also considers international law protections including the ICCPR and the Universal Declaration of Human Rights, as well as other matters such as the institution of property itself, the Treaty of Waitangi, and political considerations. Arguments in favour of constitutional protection for property must be balanced against competing arguments for the protection of interests other than those of private enterprise.

In New Zealand, absent any statutory obligation, the principle of no state appropriation without just compensation is one that must be honoured by the executive and by Parliament. It cannot be implemented by the Courts. But the relative indifference of Parliament to what must be regarded as an important principle is of concern. A statute which adequately addressed the values and provided a mechanism for resolution would not be a simple undertaking to construct. Nor would it protect against future Parliamentary derogation in the form of fresh statutes. But something better than ordinary political debate is required so that the issues are at least properly considered. The matters at stake are worrying and they need to be addressed in some systematic manner. New Zealand needs a better and more principled way of identifying and dealing with these issues.

Keywords: Westco Lagan v. Attorney-General, public law, constitutional law, property rights, Magna Carta

JEL Classification: K19, K11, K39

Suggested Citation

Palmer QC, Sir Geoffrey, Westco Lagan v Attorney-General (2001). New Zealand Law Journal 163, 2001; Victoria University of Wellington Legal Research Paper Series Palmer Paper No. 86/2015. Available at SSRN: https://ssrn.com/abstract=2187637

Sir Geoffrey Palmer QC (Contact Author)

Victoria University of Wellington - Faculty of Law ( email )

PO Box 600
Wellington, 6140
New Zealand

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