In 2015, the Northern Territory Government decided to lease commercial parts of the Darwin port to a Chinese- owned company.
Since then there have been many calls from Parliamentary committees, defence experts and even Kevin Rudd for the port to be taken back into Australian hands. No one has suggested though that we should just march in and take the port back. Any rescinding of the lease would be done on just terms, in a careful way, consistent with Australian governments’ past use of such powers.
The ACT Government has trashed the sanctity of Australian property rights, however, with a rash and heavy-handed takeover of the Catholic run Calvary Hospital in Canberra in recent months.
Last year, the ACT Government decided to begin negotiations to end a contract with Calvary Hospital to provide hospital services, and Calvary’s associated land and buildings. The contract had been signed by the ACT Government just 11 years prior and had 77 years left to run.
Negotiations went quiet last November. Calvary did not hear from the ACT Government for six months. Their CEO was then called in to meet the Minister and was told that the Government was ending negotiations. The Government would take over the Calvary Hospital using the ACT Government’s compulsory acquisition powers.
To do this the ACT Government would need legislation and they rushed that through within weeks without even the quickest of inquiries. The legislation gives the ACT Government the power to use police force to take over Calvary’s assets with just two months’ notice.
This overnight raid of private assets is an abomination. If allowed to stand it risks the trust that private businesses have invested in Australia. While the black and white rules have always given Australian governments the power to forcibly acquire assets, the unwritten rule is that these powers are used sparingly and only as a last resort.
Before my Parliamentary career I helped negotiate the purchase of land from the Sisters of Mercy (who own the Mater Hospital in Brisbane). They were tough negotiators, the old saying is that the Sisters of Mercy show no charity and the Sisters of Charity show no mercy.
But the Queensland Government didn’t use its extraordinary powers to just take over an asset at knock down prices. The Government negotiated just like any other private business would have to.
If the ACT Government’s approach becomes the new norm, how could any private business have the confidence to engage in long term contracts with a government, when that government could just rip the contract up if they change their mind in the future? Anyone doing business with a government today would have to charge them higher prices, because they could not be confident that the business would be there tomorrow.
Because of these risks, I have pushed for a Senate inquiry into what has happened in the ACT. There are also suggestions that the ACT Government has taken its action because of an anti-Catholic bias. Many Australians are concerned about what the ACT Government’s actions could mean for Catholic schools or aged care facilities.
The ACT Government has made its draconian laws using powers granted to it by the Commonwealth Government. Those powers do allow them to acquire property but only on “just terms”. The same terms are used in Australia’s Constitution.
A lot hinges on the proper application of those words “just terms”. The iconic Australian movie, The Castle centres completely around this issue. That movie resonated because Australians have had the serenity to know that a government would not just march in and take their property.
The Castle is sometimes criticised by legal scholars for not getting the black and white law right. Almost certainly governments can, and have, taken over land to expand an airport. But The Castle gets the spirit of the law right.
Australian governments to date have not abused the extraordinary powers to take assets off people at the stroke of a pen. Even when those assets are owned by the Chinese Government. They rarely use this power and normally it is only done after a long period of consultation and negotiation. But the ACT Government’s callous disregard for this heritage breaches the trust that has been built up between individuals and their governments.
Just like in other relationships, once trust is breached it is very hard to rebuild. And, if that happens we might not just have major assets owned by the Chinese Communist Party, our country will become more like theirs too.
