When is an Acquisition of Property Not an Acquisition of Property? The Search for a Principled Approach to Section 51(Xxxi)

Abstract

This article is concerned with the constitutional protection given to property holdings by the Australian Commonwealth Constitution. By explicitly conferring power to make laws with respect to the acquisition of property, section 51(xxxi) resolves any doubt that the Commonwealth Parliament's other substantive heads of power might not authorize laws with respect to the acquisition of property. However, the real significance of section 51(xxxi) lies not in the extent to which it enlarges the Commonwealth's legislative power but in the extent to which it limits it. One of the great challenges for section 51(xxxi) jurisprudence is to deliver a coherent and principled account of why some laws that effect an acquisition of property do not attract the obligation to provide just terms. The High Court's recent decision in Airservices Australia v. Canadian Airlines International Ltd (1999) 167 ALR 392; 64 ALJR 76, demonstrates that the Court's approach is confused and unsatisfactory. A new approach to this aspect of section 51(xxxi) is urgently required. This article suggests that the High Court begin to identify more explicitly the objects of section 51(xxxi) and recognize that property serves private and public functions. Only by doing so can a balance be struck in a principled and predictable manner.

Keywords: Constitutional law, Constitution, Australia, acquisition of property, eminent domain, just terms, just compensation, nature of property, public and private functions of property, balancing, Airservices case (Airservices Australia v Canadian Airlines International Ltd (1999) 167 ALR 392; 64 ALJR 76)

JEL Classification: K100, K110