Wednesday is the big day in court. What happens will determine whether the ACT government takes over Calvary Public Hospital Bruce on July 3.
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The Supreme Court has been asked by Calvary to block the compulsory acquisition.
Calvary has not made the grounds for its plea public but outside lawyers have identified what its firmest ground is.
![ACT Health Minister Rachel Stephen-Smith, Chief Justice Lucy McCallum and Calvary national chief executive Martin Bowles. ACT Health Minister Rachel Stephen-Smith, Chief Justice Lucy McCallum and Calvary national chief executive Martin Bowles.](/images/transform/v1/crop/frm/bwXFZWxdusWHsaYjdHyRzz/b04207d2-2a46-4009-b927-8f68f402bc66.jpg/r0_0_3840_2159_w1200_h678_fmax.jpg)
The nub of the case is in Section 10 of the law passed by the ACT assembly a week ago.
This law (the Health Infrastructure Enabling Act 2023) says the "acquisition must be on just terms".
It then provides some information about "just terms" - there would be "reasonable compensation" to Calvary, for example.
But the ACT's new law says much of the detail on how "just terms" would be decided would come by "regulation" - in other words it would be decided by officials, presumably at the direction of politicians.
On this reading, details of compensation (such as how it's worked out, how claims are made and how disputes about it are resolved) are yet to be disclosed. Officials would determine it.
The federal parliament only gave the ACT the power to compulsorily acquire property if the "just terms" are spelled out in more detail, is the argument. (For the legally minded, the relevant federal law is the Australian Capital Territory (Self-Government) Act 1988).
Therefore, if the "just terms" details are not in the ACT's new law, that law would not be legal under federal law. If that were so, the Supreme Court would declare the ACT's new law invalid.
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There is no doubt the ACT government does have the power to compulsorily acquire land. That ability is in the ACT Land Acquisition Act 1994.
But this act, applying to other compulsory acquisitions in the ACT, has much more detail than is in the law which was passed specifically to take over Calvary.
One of the country's leading lawyers in this field - and one not involved for either side in the Calvary/ACT government dispute - thinks the discrepancy may be significant.
"It is unknown why the Lands Acquisition Act 1994 is not intended to apply here and this raises the issue of whether the Calvary acquisition law gives enough detail about 'just terms' compensation and how any dispute over it will be resolved," Wayne Morgan, associate professor at the ANU College of Law, said.
He emphasises that he is not privy to the cases being made by either side. He is speculating as an expert in this area of law but without specific information on this case.
If the Supreme Court decides the ACT government has not put enough detail of how to assess compensation to Calvary - provide "just terms" - the court would rule the ACT's law as unlawful.
That blocking by the court would, without doubt, delay the takeover, and maybe scupper it. The ACT government would have to redraft and repass the law to make it legal and valid.
The smart legal money remains on the ACT government winning - but lawyers are not putting their shirts on it.
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