Part VII Rights, Ch.41 Property

This chapter focuses on the unique formulation of section 51(xxxi), the expropriation clause found in the Australian Constitution. In particular, the chapter suggests that there are unresolved tensions between the status of section 51(xxxi) as a legislative power-conferring provision and its status as a constitutional guarantee. These tensions are most evident in the High Court's regulatory expropriations jurisprudence. Despite the High Court's insistence that section 51(xxxi) is best understood as a constitutional guarantee and not a supplementary grant of legislative power, the High Court has tackled this key interpretive question by using the same approach used to determine whether a law falls within a grant of legislative power. The chapter suggests that these tensions ultimately betray a deeper ambivalence about the place of rights in Australian constitutionalism.