B. The Interpretive Questions Presented
It will be helpful to begin by briefly describing the central interpretive issues presented by section 51(xxxi), which concern the scope of constitutional protection afforded to private property rights. Section 51(xxxi) is a general limitation on Commonwealth legislative power, including the power to make laws for the Territories.4 It does not (p. 1015) apply to the exercise of Commonwealth executive power.5 It also does not apply directly to the States, although it does prohibit the Commonwealth from making a grant of financial assistance to a State with a condition that would require the State to acquire property on unjust terms.6
Within this sphere of operation, there are four interpretive questions presented by the text of section 51(xxxi). The first two questions go to the question of when the expropriations clause is engaged:
The second two questions go to the question of when an expropriation is legitimate, and arise only when the expropriations clause is engaged:
The acquisitions question has by far proven the most contentious and is the interpretive issue that has occupied most of the High Court’s attention. It will be suggested that one reason that the acquisitions question is so vexed has to do with the Court’s approach to the ‘property question’, where ‘property’ has been given an extremely capacious interpretation. Before turning to these definitional issues, however, I will briefly comment on the second two questions.
1. The Purposes Question
The question of legitimate purposes is an issue that may be contentious in cases where there is a direct confiscation of property (eg, where the Commonwealth takes title to land through the exercise of its powers of eminent domain). In cases of indirect acquisition, where the object of the law is not to acquire property but some regulatory objective, the issue does not strictly speaking arise. That is because where the object of the law is to pursue some regulatory objective there will always be a preliminary question about whether the law falls under an enumerated grant of Commonwealth legislative power: that is, the law may be invalid for want of legislative power, independently of the question of whether the law is invalid because it acquires property on otherwise than just terms. In such cases the issue is not whether the purpose of the acquisition is valid, but whether there is an acquisition at all.
(p. 1016) Where the object of the law is to acquire property, however, there is a distinct question about whether the purpose of the acquisition is valid. Section 51(xxxi) requires that acquisition be for a ‘purpose in respect of which the Parliament has power to make laws’. This can be compared with other expropriation clauses, which not uncommonly require that property be expropriated for ‘the public good’ or ‘in the public interest’.7 Such requirements suggest that the state could not simply acquire property in order to transfer it to another person for his or her own private benefit. Although this appears to be an important justiciable limitation on the power to expropriate property that requires courts to investigate the likely public benefit of the expropriation, this has sometimes been doubted on the basis that courts are ill-suited for such inquiries and will avoid them where possible. For instance, even the ‘public use’ requirement under the United States Constitution,8 which is generally thought to be exceptional in its wide protection of private property rights, has been interpreted as co-extensive with the scope of the State’s legislative powers.9 In practice, then, generally worded ‘public purpose’ requirements may not impose meaningful limitations on the power to expropriate property.
The same is largely true of the purposes requirement under section 51(xxxi), but for a different reason. In principle, the requirement is an important justiciable limitation on the Commonwealth’s power to acquire property, given the limited, enumerated purposes for which Parliament can make laws. In practice, however, the broad construction given to grants of Commonwealth legislative power and the principle of dual-characterization—whereby a law whose predominant subject matter does not form a grant of legislative power can be valid so long as it can also be characterized as a law with respect to a grant of legislative power10—suggest that the purposes requirement is unlikely to be a significant limitation on Commonwealth power to compulsorily acquire property. For example, Parliament does not have the power to legislate with respect to the environment. However, Parliament does have the power to implement treaties, and thus could compulsorily acquire land for the purpose of giving effect to a treaty obligation to protect the environment.11
The phrase ‘on just terms’ has been construed rather narrowly as meaning ‘with compensation’. Phrases such as ‘fair compensation’, ‘just compensation’, or ‘quid pro quo’ are often used interchangeably with, or even in place of, ‘just terms’.12 Debates about the meaning of ‘just terms’ have thus primarily concerned the measure of compensation required, and in particular under what circumstances departures from market value are constitutionally valid or even mandated.13 For instance, it has been debated whether the public interest ought to be taken into account when determining compensation.14 It has also been recognized that monetary compensation may be inadequate in some cases, particularly where the property acquired has significant social, cultural, or even spiritual value, although this matter has yet to be squarely addressed or resolved.15
Although the meaning of the phrase ‘on just terms’ will not be explored here, it should be noted that ‘with compensation’ is not the only available interpretation.16 For instance, the requirement of ‘just terms’ could be interpreted more broadly as a requirement of ‘fair dealing’. There is some evidence that the framers selected the phrase ‘just terms’ in order to incorporate requirements of fair dealing or due process that go beyond the payment of compensation.17 There is also some judicial support in favour of this broader construction.18 Were this broader construction adopted, the phrase ‘on just terms’ could incorporate additional requirements beyond the payment of adequate compensation. Moreover, just terms analysis could even implicate the question of whether compensation is required at all in circumstances where the acquisition otherwise meets the requirements of fair dealing.19 To date, however, there has been ‘little judicial elaboration of what the phrase means’.20
Section 51(xxxi) analysis is thus focused primarily on determining whether there is an acquisition of property: if the law effects an ‘acquisition of property’, then the payment of compensation is necessarily required. The most contentious issue concerning the interpretation of section 51(xxxi) occurs where legislation that does not have the acquisition property as its object nevertheless appears to have that practical effect, as an indirect consequence of some otherwise legitimate regulatory objective. I refer to such cases as ‘regulatory expropriation’ cases. When do such laws amount to an ‘acquisition of property’ for the purposes of section 51(xxxi)?
To appreciate the nature of this interpretive problem, it is first necessary to say something about how the High Court has approached the property question and the acquisition question. The Court’s approach to these two definitional questions has been guided by the ‘now well established’ proposition that ‘s 51(xxxi) enjoys the status of a constitutional guarantee’.21 From the proposition that section 51(xxxi) has the status of a constitutional guarantee, it is thought to follow that the provision must be construed liberally, by giving a broad interpretation both to ‘property’ and to ‘acquisition’.22
As a result, ‘property’ for section 51(xxxi) purposes includes an extremely wide description of interests, encompassing any interest in relation to the use or control of a ‘thing’, whether tangible or intangible, and however ‘innominate’ or ‘anomalous’.23 This includes interests that would not meet the technical description of ‘property’ in either law or equity, such as choses in action or payments of money.24 Moreover, because section 51(xxxi) does not apply to the States, which are the source of most real property and land use legislation, the property interests at stake in regulatory expropriations cases infrequently involve land. Challenges to laws that alter entitlements under statutory benefit or payment schemes are far more common than challenges to land use regulation.25 The constitutional description of (p. 1019) property in Australia is thus highly unusual from a comparative perspective, where challenges to land use regulation are mainstay.
‘Acquisition’ has received a broad interpretation as well. The relevant property interest ‘acquired’ need not be received by the Commonwealth but could be received by a third party.26 Moreover, the interest received need not ‘correspond precisely’ with the interest taken,27 and may be ‘slight’ or ‘insubstantial’ in comparison.28 Finally, the receipt of the interest can be indirect, in the sense that it is the effect of a law that has some non-confiscatory purpose.29 Recognition that the indirect receipt of a property interest can amount to an acquisition is, of course, recognition of the possibility of regulatory expropriations engaging section 51(xxxi). I now turn to how the High Court has approached this issue.
D. Conclusion: Ambivalence about the Status of Section 51(xxxi)—Source of Power or Constitutional Guarantee?
Section 51(xxxi) serves two purposes. Firstly, it ensures that the Commonwealth has the power to acquire property.83 This is the purpose of the express conferral of power ‘to make laws … with respect to … the acquisition of property’, and helps explain the placement of paragraph (xxxi) in section 51 alongside other enumerated heads of legislative power. Although in many circumstances the acquisition of property would be incidental to the exercise of another grant of legislative power, making an express grant of power to acquire property unnecessary, this is not always (p. 1030) obvious.84 Thus section 51(xxxi) provides an important ‘supplementary power’, placing the Commonwealth’s power to compulsorily acquire property beyond doubt.85 Secondly, section 51(xxxi) prevents the arbitrary deprivation of property.86 This is the purpose of its requirement that acquisitions of property be ‘on just terms’. Thus section 51(xxxi) is also understood to provide an important constitutional guarantee—especially so, one might contend, in a Constitution that otherwise contains so few express rights and freedoms.
As the foregoing discussion has demonstrated, apprehension of the dual purpose of section 51(xxxi) has generated visible tensions in Australian constitutional property jurisprudence. The High Court has refused to analyse section 51(xxxi) in the same manner as other constitutional rights and freedoms. Instead, the interpretive task of defining the scope of the constitutional obligation to provide ‘just terms’ for the acquisition of property has been approached through characterization analysis, the interpretive method used to define the scope of grants of legislative power. In many cases this approach appears to be inconsistent with, and even appears to undermine, the status of section 51(xxxi) as a constitutional guarantee. I conclude by suggesting that these tensions reflect a deep and unresolved ambivalence about the proposition that section 51(xxxi) is a constitutional guarantee.
Using an interpretive method that is designed for determining whether a law is authorized by a constitutional grant of legislative power is inappropriate for the different and distinctive task of determining whether a law is inconsistent with a constitutional guarantee. At least some members of the Court have appreciated this incongruity, criticizing characterization analysis on the basis that it ‘saps s 51(xxxi) of content in a manner inconsistent with its frequent recognition as an important constitutional guarantee’.87 What, then, explains the High Court’s commitment to characterization analysis as the applicable interpretive approach?
One possibility is simply a discomfort with rights analysis. In comparative terms, rights occupy an unusual place in Australian constitutional law, particularly given the Constitution’s lack of a bill of rights. It is fair to say that jurisprudential techniques associated with constitutional rights analysis—while certainly not unknown—are less familiar to Australian constitutional law. It is also fair to say that such techniques fit less comfortably with Australian conceptions of the judicial role (p. 1031) and the exercise of judicial power.88 By contrast, characterization analysis encompasses a set of well-established and familiar interpretive techniques. But perhaps more importantly, characterization analysis purports to absolve courts of difficult questions concerning constitutional value and how to balance competing interests that rights analysis necessarily entails.
This discomfort with rights analysis arguably reflects an even broader disquiet with constitutional rights. For instance, the High Court has been unwavering in its position that the implied freedom of political communication is not a constitutional right but a structural limitation on legislative power, insisting that ‘[t]he freedom is to be understood as addressed to legislative power, not rights, and as effecting a restriction on that power.’89 Even so, the Court’s consistent rejection of the proposition that the freedom of political communication is a constitutional right has not prevented the development of rights analysis in that context. Although there remains debate about whether a structured proportionality test is the correct approach, it is nevertheless well-established and uncontroversial that the analysis of the freedom of political communication requires considering the values the freedom protects and determining what constitutes reasonable limitations on those values.90 The unusual place of rights in Australian constitutional law thus does not fully explain why the Court has approached the interpretation of section 51(xxxi) through characterization analysis rather than through rights analysis.
This leads to a second possibility, which is that despite the Court’s ongoing affirmation that section 51(xxxi) is a constitutional guarantee, there are in fact unresolved doubts about that proposition. It is noteworthy that in recent years at least one justice has expressly dissented from the view that section 51(xxxi) is a constitutional guarantee,91 and another has implicitly done so, by suggesting that it is a mistake to think that the provision ‘guarantees freedom from acquisition other than on just terms’ and thus that proportionality analysis of the kind used in the context of other constitutional guarantees is wholly inappropriate.92 In addition, at least some other members of the Court have expressed reservations about the status of section 51(xxxi) as a constitutional guarantee in response to interpretive challenges presented by the problem of regulatory expropriations. For instance, some justices have emphasized that section 51(xxxi) should be understood as ‘primarily’ a grant of legislative power,93 while others have suggested that describing section 51(xxxi) as a (p. 1032) ‘constitutional guarantee’ has the potential to ‘obscure the fact that it is a qualification imposed upon a legislative power’.94
If section 51(xxxi) is not to be understood as a constitutional guarantee, then what is the alternative? One possibility, forcefully argued by Professor Rosalind Dixon,95 is that the provision should instead be understood as a supplementary grant of legislative power: that is, as designed to grant the power to acquire property in circumstances that fall outside the sphere of matters incidental to the exercise of other grants of legislative power. Were this view of section 51(xxxi) accepted, it would appear to resolve many of the difficulties that the High Court’s interpretive approach has produced. For one thing, characterization would no longer be an incongruous method of analysis.
Although the High Court has so far resisted the view that section 51(xxxi) should be understood exclusively as a limited conferral of legislative power, there are nevertheless indications of, if not doubt, then ambivalence—or perhaps even regret—about its status as a constitutional guarantee. By interpreting section 51(xxxi) as a constitutional guarantee, the Court must grapple with the problem of regulatory expropriations, which requires defining limitations on the State’s power to regulate property rights for the public good. This is widely regarded as one of the most contentious interpretive tasks in constitutional rights jurisprudence, and is frequently cited by critics as a reason not to afford constitutional protection to private property rights in the first place.96 Whether or not this assessment of the problem is correct, it is clear that it is an interpretive task that requires a method of rights analysis. Articulation of the relevant constitutional values and what constitutes reasonable limitations on those values, however controversial, simply cannot be avoided. Unless and until the High Court is prepared to embrace the implications of the view that section 51(xxxi) is a constitutional guarantee—namely, to accept that it should be analysed in the same manner as other constitutional guarantees—it is suggested that the status of section 51(xxxi) as a constitutional guarantee will require reconsideration.
1 See Chapter 37 ‘Rights Protection in Australia’. Section 51(xxxi) is the oldest property clause among Commonwealth countries with written constitutions: Tom Allen ‘Commonwealth Constitutions and the Right not to be Deprived of Property’ (1993) 42 International & Comparative Law Quarterly 523, 525.
2 Director of Public Prosecutions; Ex parte Lawler (1994) 179 CLR 270, 283 (Deane and Gaudron JJ).
3 Theophanous v Commonwealth (2006) 225 CLR 101, 112–13 (Gleeson CJ).
4 Wurridjal v Commonwealth (2009) 237 CLR 309. By extension, the Territories—which derive their legislative power from the Commonwealth—are also subject to the requirements of s 51(xxxi): see, eg, Northern Territory (Self-Government) Act 1978, s 50.
5 Johnston Fear & Kingham & The Offset Printing Co Pty Ltd v Commonwealth (1943) 67 CLR 314.
6 ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140.
7 See, eg, Basic Law for the Federal Republic of Germany, s 14(3); Constitution of the Republic of South Africa, s 25(2).
9 Hawaii Housing Authority v Midkiff, 467 US 229, 240 (1984) (holding that ‘The “public use” requirement is … coterminous with the scope of a sovereign’s police powers’).
10 See James Stellios, Zines’s The High Court and the Constitution (6th edn, Federation Press 2015) 19–47.
11 The scenario in the Tasmanian Dam Case presented this possibility, although the Commonwealth chose to prohibit environmentally harmful activities rather than compulsorily acquire land: The Commonwealth of Australia v Tasmania (1983) 158 CLR 1. The purpose of the legislation at issue in that case was to protect a wilderness area but also to give effect to the Commonwealth’s treaty obligations under the World Heritage Convention. The State of Tasmania’s argument that the regulation of conduct amounted to an acquisition of property was unsuccessful.
12 See, eg, Airservices Australia v Canadian Airlines (2000) 202 CLR 133, 252–53 (McHugh J).
13 See Tom Allen, ‘The Acquisition of Property on Just Terms’ (2000) 22 Sydney Law Review 351, 369–75.
14 See, eg, Grace Bros Pty Ltd v Commonwealth (1946) 72 CLR 269, 280 (Latham CJ). But see Georgiadis v Australian & Overseas Telecommunications Corp (1994) 179 CLR 297, 310–11 (Brennan J).
15 These issues were raised in Wurridjal (n 4), a case involving the Commonwealth acquisition of land with sacred Aboriginal sites. See Matthew T Stubbs, ‘The Acquisition of Indigenous Property on Just Terms: Wurridjal v Commonwealth’ (2011) 33 Sydney Law Review 119, 124–27.
16 See Lael K Weis, ‘ “On Just Terms”, Revisited’ (2017) 45 Federal Law Review 223, 250–52.
17 See Duane L Ostler, ‘The Drafting of the Australian Commonwealth Acquisition Clause’ (2009) 28 University of Tasmania Law Review 211, 232–35.
18 See, eg, Attorney General (NT) v Emmerson (2014) 253 CLR 393, 446  (Gageler J, dissenting); Grace Bros (n 14) (Latham CJ), 285 (Starke J), 290, 291 (Dixon J); Nelungaloo Pty Ltd v The Commonwealth (1952) 85 CLR 545, 569 (Dixon J), 600 (Kitto J); Wurridjal (n 4) 425 , 426  (Kirby J).
20 Commonwealth v WMC Resources Ltd (1998) 194 CLR 1, 102–03 (Kirby J, dissenting).
21 Australian Tape Manufacturers Association Ltd v The Commonwealth (1993) 176 CLR 480, 509 (Mason CJ, Brennan, Deane and Gaudron JJ) (‘ATM’). See also Clunies-Ross v The Commonwealth (1984) 155 CLR 193, 201–02 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ); ICM Agriculture (n 6) 212  n 301 (Heydon J, dissenting) (listing recent judgments affirming the proposition that s 51(xxxi) is a constitutional guarantee).
22 See, eg, Georgiadis (n 14) 303 (Mason CJ, Deane and Gaudron JJ); ATM (n 21) 509 (Mason CJ, Brennan, Deane and Gaudron JJ); Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513, 568 (Gaudron J).
23 Bank of New South Wales v Commonwealth (1948) 76 CLR 1, 349 (Dixon J); Georgiadis (n 14) 314 (Dawson J, dissenting in the result) (‘Bank Nationalisation Case’).
24 See, eg, ATM (n 21) 509 (Mason CJ, Brennan, Deane and Gaudron JJ); Georgiadis (n 14) 314 (Dawson, dissenting in the result); Newcrest Mining (n 22) 602 (Gummow J) (Toohey J and Gaudron J agreeing).
25 See, eg, Georgiadis (n 14) (entitlement to bring cause of action under workers’ compensation law); Health Insurance Commission v Peverill (1994) 179 CLR 226 (entitlement of medical practitioner to fee for assigned benefit); Theophanous (n 3) (entitlement to superannuation benefits).
26 See, eg, Trade Practices Commission v Tooth & Co Ltd (1979) 142 CLR 397, 426 (Mason J), 451 (Aicken J, dissenting in the result).
27 See eg Georgiadis (n 14) 305 (Mason CJ, Deane and Gaudron JJ); WMC Resources (n 20) 28  (Toohey J, dissenting), 35  (Gaudron J).
28 See, eg, WMC Resources (n 20) 28  (Toohey J, dissenting).
29 See, eg, Newcrest Mining (n 22) 595 (Gummow J) (Toohey J and Gaudron J agreeing); Tooth (n 26) 415 (Stephen J).
30 As the High Court has acknowledged: see, eg, Mutual Pools and Staff Pty Ltd v The Commonwealth of Australia (1994) 179 CLR 155, 189 (Deane and Gaudron JJ); Tooth (n 26) 413–15 (Stephen J).
31 See Mutual Pools (n 30) 189 (Deane and Gaudron JJ) (‘If every such law which incidentally altered, modified or extinguished proprietary rights or interests … were invalid unless it provided a quid pro quo of just terms, the legislative powers of the Commonwealth would be reduced to an extent which could not have been intended by those who framed and adopted the Australian Constitution.’)
32 For example, the decision to leave the right to property out of the Canadian Charter of Rights and Freedoms 1982 was directly influenced by the obstacle that the constitutional protection of property has presented for social welfare legislation in the United States: see Alexander Alvaro, ‘Why Property Rights Were Excluded from the Canadian Charter of Rights and Freedoms’ (1991) 24 Canadian Journal of Political Studies 309, 318; Sujit Choudhry, ‘The Lochner Era and Comparative Constitutionalism’ (2004) 2 International Journal of Constitutional Law 1, 16–27.
33 For example, The Constitution of India was amended in 1978 to remove the expropriation clause, art 31, and to demote property from a ‘fundamental right’ to a mere ‘legal right’ (under the more modest art 300A): Constitution (Forty-Fourth) Amendment Act 1978. The Forty-Fourth Amendment was enacted in response to the Supreme Court of India’s invalidation of socio-economic reform legislation under art 31 (among other fundamental rights).
34 For a good general discussion of the characterization approach as it applies to s 51(xxxi), as well as relevant authorities, see Airservices Australia (n 12) 247–50 – (McHugh J).
35 Airservices Australia (n 12) 248  (McHugh J); see also Tooth (n 26) 433 (Mason J). But see WMC Resources (n 20) 90  (Kirby J, dissenting).
36 Airservices Australia (n 12) 250  (McHugh J). But see Mutual Pools (n 30) 188 (Deane and Gaudron JJ).
37 See Simon Evans, ‘When is an Acquisition of Property not an Acquisition of Property? The Search for a Principled Approach to s 51(xxxi)’ (2000) 11 Public Law Review 183 (criticizing this aspect of s 51(xxxi) jurisprudence).
38 See, eg, Emmerson (n 18) 439  French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ; ICM Agriculture (n 6) 182  Hayne, Kiefel and Bell JJ.
39 JT International SA v The Commonwealth of Australia (2012) 250 CLR 1, 119  Kiefel J.
40 See Chapter 39 ‘Expression’.
41 Constitution, s 92, see Chapter 32 ‘Money’ and Chapter 34 ‘The Passage Towards Economic Union in Australia’s Federation’.
42 See, eg, Mutual Pools (n 30) 202–03 (Dawson and Toohey JJ); Peverill (n 25) 248 (Dawson J). The Fifth Amendment relevantly provides that: ‘nor shall private property be taken for public use, without just compensation.’
43 Tasmanian Dam Case (n 11) 145 (Mason J) (emphasis added). See also Mutual Pools (n 30) 185 (Deane and Gaudron JJ).
44 The leading authority describing this approach is Penn Central Transportation Co v. New York, 438 US 104 (1978).
45 See, eg, Tasmanian Dam Case (n 11) 247–48 (Brennan J), JT International (n 39) 39  (Gummow J).
46 See WMC Resources (n 20) 16–17  (Brennan CJ) (identifying the reciprocal nature of property rights as the reason why it is difficult to draw a sharp distinction between deprivations and acquisitions).
47 Georgiadis (n 14) 321 (Toohey J, dissenting in the result). This statement was a concession to the majority, who found that there was an acquisition, whereas his Honour found that the law effected a mere deprivation.
48 See, eg, Georgiadis (n 14) 305 (Mason CJ, Deane and Gaudron JJ); JT International (n 39) 46  (Gummow J); Mutual Pools (n 30) 173 (Mason CJ), 175 (Brennan CJ), 194 (Dawson and Toohey JJ), 223 (McHugh J); Peverill (n 25) 236 (Mason CJ, Deane and Gaudron JJ); WMC Resources (n 20) 15  (Brennan CJ), 36  (Gaudron J).
52 ibid 530 (Brennan CJ) (dissenting in the result, but agreeing on the acquisition issue).
53 ICM Agriculture (n 6) 179–80 – (French CJ, Gummow and Crennan JJ), 201–03 – (Hayne, Kiefel and Bell JJ).
54 ibid 173–74 – (French CJ, Gummow and Crennan JJ), 188–90 – (Hayne, Kiefel, and Bell JJ).
55 ibid 189  (Hayne, Kiefel and Bell JJ) (citation omitted).
56 ibid 182  (Hayne, Kiefel and Bell JJ).
57 For instance, at the outset of the joint reasons of Hayne, Kiefel and Bell JJ, their Honours acknowledge that, ‘water and rights to use water are of critical importance … to society as a whole’: ibid 182 .
58 The history of the regulation of water entitlements is considered at length in both majority judgments: ibid 174–76 – (French CJ, Gummow and Crennan JJ), 191–95   (Hayne, Kiefel and Bell JJ).
59 Arguably, important considerations here were the fact that the licence holders’ rights were replaced rather than simply eliminated, and the fact that they received structural adjustment payments to help offset their losses: ibid 159–60 – French CJ, Gummow and Crennan JJ.
60 See Nintendo Co Ltd v Centronics Systems Pty Ltd (1994) 181 CLR 134, 160 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ).
61 See Lawler (n 2) 285 (Deane and Gaudron JJ); Theophanous (n 3) 126  (Gummow, Kirby, Hayne, Heydon and Crennan JJ).
62 It is accepted that money is ‘property’ for s 51(xxxi) purposes: ATM (n 21) 509 (Mason CJ, Brennan, Deane and Gaudron JJ).
63 See, eg, ATM (n 21) 508–09 (Mason CJ, Brennan, Deane Gaudron JJ); Newcrest Mining (n 22) 654 (Kirby J).
64 Burton v Honan (1952) 86 CLR 169 (upholding the forfeiture of an illegally imported car that was in possession of a bona fide purchaser for value); Lawler (n 2) (upholding the forfeiture of a leased fishing vessel where the owners had no knowledge of the lessees’ illegal fishing activities, were unlikely to recover from the lessees, and where the lessees had also paid a fine).
67 ibid 416–19 – (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ). The Court has emphasized this point in other cases as well: see, eg, Burton (n 64) 178–79 (Dixon CJ); Lawler (n 2) 280 (Brennan J), 289 (Dawson J), 294 (McHugh J); Theophanous (n 3) 126  (Gummow, Kirby, Hayne, Heydon and Crennan JJ).
68 Tooth (n 26) 403 (Barwick CJ).
69 Emmerson (n 18) 408–09 (headnote), 437  (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
70 ibid 435  (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
71 ibid 438  (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) (emphasis added).
72 See, eg, Lawler (n 2) 285–86 (Deane and Gaudron JJ).
73 See, eg, Georgiadis (n 14) 305–06 (Mason CJ, Deane and Gaudron JJ); Peverill (n 25) 237 (Mason CJ, Deane, and Gaudron JJ).
74 See, eg, Nintendo (n 60) 161 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ).
75 cf Airservices Australia (n 12) 255 (McHugh J), 300 (Gummow J) 304–05 (Hayne J), 155–56 (Gaudron J, dissenting) (reaching opposite conclusions about the application of the ‘adjustments’ category to the facts); Georgiadis (n 14) 305–06 (Mason CJ, Deane and Gaudron JJ), 327–28 (McHugh J, dissenting) (reaching opposite conclusions about the application of the ‘inherently susceptible’ category to the facts).
76 Georgiadis (n 14) 305–06 (Mason CJ, Deane and Gaudron JJ).
77 See, eg, Attorney-General (NT) v Chaffey (2007) 231 CLR 651, 664 (Gleeson CJ, Gummow, Hayne and Crennan JJ), 669 (Kirby J), 671 (Callinan J); Telstra Corporation Ltd v The Commonwealth (2008) 234 CLR 210, 232  (Gleeson CJ, Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ); Wurridjal (n 4) 439–40 – (Crennan J).
78 See, eg, Airservices Australia (n 12) 299–300  (Gummow J); ICM Agriculture (n 6) 226–28  (Heydon J, dissenting); WMC Resources (n 20) 98–99 (Kirby J, dissenting).
79 See Peverill (n 25) 236 (Mason CJ, Deane and Gaudron JJ); WMC Resources (n 20) 16–17  (Brennan CJ), 29–30 – (Toohey J, dissenting), 35–36 – (Gaudron J), 70  (Gummow J), 91–92  (Kirby J, dissenting).
80 JT International (n 39) 12 , 17–19 – (French CJ), 33 , 39–40 –, 48–49 – (Gummow J), 54 , 55–57 – (Hayne and Bell JJ), 92–93  (Crennan J), 120 , 123–29  –  (Kiefel J).
81 ibid 11  (French CJ), 30  (Gummow J) (expressly holding that the ‘inherently susceptible to variation’ category could not resolve the matter).
82 Chaffey (n 77) 669  (Kirby J).
83 Grace Bros (n 14) 290–91 (Dixon J).
84 This was a point raised by Sir Edmund Barton during the Convention Debates, in proposing the inclusion of an expropriation clause: see Official Report of the National Australasian Convention Debates (Third Session) (Melbourne 1898) 151.
85 Rosalind Dixon, ‘Overriding Guarantee of Just Terms or Supplementary Source of Power?: Rethinking s 51(xxxi) of the Constitution’ (2005) 27 Sydney Law Review 639, 640.
86 Grace Bros (n 14) 291 (Dixon J).
87 ICM Agriculture (n 6) 230  Heydon J (dissenting). Justice Kirby has similarly criticized characterization analysis as a method of interpreting s 51(xxxi) qua constitutional guarantee: See, eg, WMC Resources (n 20) 90  Kirby J (dissenting).
88 For instance, in Momcilovic v The Queen (2011) 245 CLR 1 several members of the High Court held that a requirement in a statutory rights instrument to interpret legislation consistently with rights provisions was incompatible with the exercise of federal judicial power. See Chapter 28 ‘The Separation of Legislative and Executive Power’.
89 Unions NSW v New South Wales  HCA 58  (French CJ, Hayne, Crennan, Kiefel and Bell JJ) (emphasis added).
90 See Chapter 39 ‘Expression’.
91 This is the view of McHugh J: see, eg, WMC Resources (n 20) 50 , 51–52 – (McHugh J).
92 JT International (n 39) 119  (Kiefel J).
93 See, eg, Lawler (n 2) 284–85 (Deane and Gaudron JJ); WMC Resources (n 20) 34  (Gaudron J).
94 Newcrest Mining (n 22) 552 (Dawson J, dissenting).
95 ‘Overriding Guarantee of Just Terms or Supplementary Source of Power?’ (n 85).
96 Gregory S Alexander, The Global Debate over Constitutional Property: Lessons for American Takings Jurisprudence (Chicago 2006) 1–74; Jennifer Nedelsky, ‘Should Property Be Constitutionalized? A Relational and Comparative Approach’ in Gregory S Alexander, Geerit E van Maanen, and André J van der Walt (eds) Property on the Threshold of the 21st Century (MAKLU 1996) 417.