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Homework Question - Who Owns the Land that Prison is On?

Discussion in 'Australian Law School Homework Questions' started by AllForHer, 21 April 2016.

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  1. AllForHer

    AllForHer Well-Known Member

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    Just trying to work out if the State owns the land that it's publicly-run prison is on? Can't seem to find any information about this anywhere.
     
  2. Mary W

    Mary W Well-Known Member

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    I should think this is a straight forward property ownership/usage issue. In each case, the State (or Territory) would either own the land or lease it the same way it can hold land for other purposes.

    Is your question directed at whether there is some kind of public land issue?
     
  3. AllForHer

    AllForHer Well-Known Member

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    Constitutional law, actually, but more out of curiosity than anything else.
     
  4. Rod

    Rod Well-Known Member

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    What is the actual problem to answer?

    Seems straightforward at face value. A publicly run prison is not tied to ownership of the land. State either owns the land or leases it from someone.
     
  5. Mary W

    Mary W Well-Known Member

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    I'm curious now. Why do you think there is a Constitutional issue?
     
  6. AllForHer

    AllForHer Well-Known Member

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    Okay, so the reason this came up is because I was trying to find clarity about whether there are restrictions on the Commonwealth's legislative capacity to make laws affecting State-owned land. I found the clarity I was after in Commonwealth v Tasmania (1983) 158 CLR 1.

    For the record, this is just a tangent in my study habits that stemmed from my current assignment, which is a hypothetical situation in which the Commonwealth has passed legislation governing disciplinary procedures conducted in State correctional facilities. As a student, it's common practice for me to study in a network of tangents, which is how I got on to the topic of whether the States own land on which publicly-run prisons are built.

    If we want to talk more about my actual assignment, I'd be happy to hear thoughts on that, too. :)
     
  7. Rod

    Rod Well-Known Member

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    Commonwealth v Tasmania (1983) 158 CLR 1 is a special case as Tassie effectively ceded, possibly unwittingly, to the Commonwealth.

    Can the Commonwealth pass legislation governing prisons? My 'unlearned' response is no. I'm doing Constitutional law next semester :)
     
  8. AllForHer

    AllForHer Well-Known Member

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    Well, there's nothing in the Constitution which explicitly stops the Commonwealth from making legislation for the governance of state-based prisons, and likewise, it may well be within its right to do so if the law is established under, for example, a treaty, but this particular hypothetical legislation (which we have to assume has been established under a relevant head of power) is unconstitutional.

    Basically, it orders each prison to create its own code of conduct. Where a challenge is raised to an alleged breach of the code, a tribunal comprised of two prison guards and an inmate nominated by the offender decides if the offence is well-founded according to the code, or if it should be dismissed. Failing that, the matter can then be heard before a Prison Discipline Appeals Court - which also has the final say and the matter can't be heard on appeal in any higher court.

    I may be wrong, but I see a lot of constitutional issues here - the Cth is vesting executive powers in the prisons to create their own 'laws', but then also granting the same body some judicial functions, which threatens the integrity of the system. The Court of Appeals is also not a constitutional Court. The Commonwealth is also making laws which 'curtail' the State's capacity to govern its people within its own Constitutional power.

    It's actually more complex than I anticipated. It would be easier if the Constitution expressly restricted the Commonwealth from making laws over state prisons, but alas! University can never be that easy. :)
     
  9. Mary W

    Mary W Well-Known Member

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    That's not really how the Constitution works as I understand it. The Commonwealth can only legislate in areas where s51 says it can, rather than the Constitution setting prohibitions. It's a kind of positive not negative authority.

    If the prison issue is not a referral as Tim suggested (such as happened when the states gave the Comonwealth power re de facto relationships), have you considered whether 51(xxiv) might apply? Without doing any research I don't know what that subsection applies to- it's just a wild thought and may well be much more restrictive.

    As for the remainder, sorry, it's doing my head in.
     
  10. AllForHer

    AllForHer Well-Known Member

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    No, no, this was set at the beginning of this assessment - we, the students, have been directed to assume that the Commonwealth has passed this particular Act under one of its heads of powers (for example, the external affairs power to pass laws that give effect to treaties). Thus, we're not at liberty to argue that the Commonwealth cannot make such laws under one of its heads of power. That would be too easy. But they don't want the easy argument. They want the challenging argument, which is why we can't just go directly to validity under section 51.

    Certainly not a straight-forward assessment, in any case. :)
     

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