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Part VII Rights, Ch.41 Property

Lael K Weis

From: The Oxford Handbook of the Australian Constitution

Edited By: Cheryl Saunders, Adrienne Stone

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 28 March 2023

(p. 1013) Chapter 41  Property

A.  Introduction

The protection of private property from arbitrary confiscation is canonically cited as among the few examples of an express rights guarantee found in the Australian Constitution.1 However, to call the constitutional protection afforded to property an ‘express right’ is somewhat misleading. This has to do with the highly unconventional formulation of Australia’s expropriation clause as a conferral of legislative power. Whereas most expropriation clauses in written constitutions are listed among other rights provisions, the Australian expropriation clause is listed among other grants of legislative power in section 51 of the Constitution. Paragraph (xxxi) of that section provides that:

The Parliament shall … have power to make laws … with respect to … the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws.

Notwithstanding this formulation, the relevant qualification imposed on this grant of legislative power—namely, the requirement that the acquisition of property be ‘on just terms’—has long been understood as affording general constitutional protection to private property rights. The qualification is said to ‘abstract’ the power (p. 1014) to acquire property from other grants of legislative power, meaning that insofar as laws that fall under other heads of legislative power acquire property, they too must do so ‘on just terms’.2 In this regard, section 51(xxxi) is functionally equivalent to more conventional expropriation clauses found in written constitutions with bills of rights. Even so, it is perhaps more accurate to refer to section 51(xxxi) as an ‘implied guarantee’ rather than an express right.3

In exploring the parameters of the constitutional protection of private property rights in Australia, a central theme of this chapter will be that the unique formulation of section 51(xxxi) has informed the High Court’s approach to its interpretation. In particular, the chapter will suggest 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: cases where the Court must determine whether a law that does not have the expropriation of property as its object nevertheless amounts to an ‘acquisition’ within the meaning of section 51(xxxi), thereby enlivening the ‘on just terms’ requirement. 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 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. Issues concerning the purposes and values that underlie the constitutional protection afforded to property rights have been avoided in favour of an approach that seeks to define the scope of constitutional protection afforded to property based on a metaphysical distinction between ‘acquisitions’ and ‘mere deprivations’. It will be suggested that these tensions ultimately betray a deeper ambivalence about the place of rights in Australian constitutionalism.

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:

  1. (1)  What interests are constitutionally protected ‘property’? (the ‘property question’)

  2. (2)  What constitutes an ‘acquisition’ of property? (the ‘acquisition question’)

The second two questions go to the question of when an expropriation is legitimate, and arise only when the expropriations clause is engaged:

  1. (3)  What limitations are there to the purposes for which property may be acquired? (the ‘purposes question’)

  2. (4)  What does ‘on just terms’ require? (the ‘just terms question’)

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

(p. 1017) 2.  The just terms question

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

(p. 1018) 3.  The Definitional Questions: What Constitutes an ‘Acquisition of Property’?

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.

C.  Defining the Scope of ‘Acquisitions’: The Problem of Regulatory Expropriations

We are now in a position to appreciate why the problem of regulatory expropriations presents the most difficult question concerning the interpretation of section 51(xxxi). Due to the breadth of the interpretation of ‘property’ and ‘acquisition’, it is evident that many regulatory laws impact rights and obligations in a way that could plausibly be described as effecting an ‘acquisition of property’.30 However, it is clearly both undesirable and implausible to hold that all such laws require the payment of compensation. To do so would make the Commonwealth’s otherwise plenary grant of legislative power within the subject matters granted to it unduly narrow, a result that seems inconsistent with the Constitution’s design.31 On the other hand, it would (p. 1020) clearly also be unacceptable if the Commonwealth could evade its constitutional obligation to pay compensation for the acquisition of property simply by enacting regulatory legislation that accomplishes the same objective of a direct acquisition: for instance, by mandating that certain property only be used in the service of a particular Commonwealth purpose. When should the Commonwealth have to pay compensation for the expropriative consequences of its regulatory activities and when should it not? This section will examine how the High Court has approached this interpretive problem.

1.  Characterization Analysis vs Rights Analysis

The problem of regulatory expropriations is an inescapable and often times intractable issue encountered by any constitutional system that protects private property rights from expropriation. Indeed cognizance of the problem of regulatory expropriations has led some countries to exclude the protection of property from arbitrary confiscation from their written constitution,32 and the inability to resolve the problem has led others to repeal their expropriation clauses.33 From this broader comparative perspective, the Australian approach to the problem is distinctive in that it reflects a deep and unresolved ambivalence about the status of section 51(xxxi) as a constitutional guarantee, as opposed to a limited conferral of legislative power.

While accepting that section 51(xxxi) is a constitutional guarantee, the High Court has simultaneously accepted that determining when regulatory expropriations of property require compensation is an interpretive problem that should be approached through ‘characterization’. Characterization is a well-established method of analysis in Australian constitutional law that is used to determine whether a Commonwealth law is authorized by a grant of legislative power. Using this method, the Court’s approach to regulatory expropriations is to determine whether the law in question is a law ‘with respect to’ the subject matter of the acquisition of property, or whether it is a law ‘with respect to’ some other subject matter (p. 1021) that forms a grant of legislative power.34 In the context of section 51(xxxi), this has been described as the search for the ‘sole or dominant character’ of the law.35 In this respect the approach to section 51(xxxi) appears to be much stricter than ordinary characterization analysis, and it is often thought to be ‘an exception to the general principle that a law can bear more than one character for the purposes of s 51’.36 Either a law is an acquisition of property or it is not. The central analysis in many section 51(xxxi) cases thus concerns whether a law that appears to effect an acquisition of property is nevertheless better described as incidental to the subject matter of another grant of legislative power.

From a comparative perspective, this approach is highly unusual. Determining whether a law is inconsistent with a constitutional guarantee is a task that is ordinarily associated with constitutional rights analysis. Constitutional rights analysis performs two distinct but closely interrelated tasks. First, constitutional rights analysis must give ‘content’ to the constitutional guarantee. This is typically accomplished by articulating the set of values served by the interest such that it is the subject of constitutional protection. Secondly, constitutional rights analysis must define the ‘scope’ of the constitutional guarantee by articulating what constitute reasonable limitations on its enjoyment. This is typically accomplished by prescribing a method for evaluating and balancing competing values, such as proportionality. By contrast, the task of characterization analysis is to determine whether the law in question meets the objective description of an ‘acquisition’. Values are not expressly articulated,37 and considerations of ‘justice’, ‘fairness’, and ‘proportionality’ that are ordinarily used to define reasonable limitations are regarded as both irrelevant and inappropriate.38 As Kiefel J recently explained, ‘[s]ection 51(xxxi) contains its own limits and conditions. The requirement of just terms applies if the law … provides for the acquisition of property. That is the question to be addressed and it is not answered by a test of proportionality.’39

From a domestic constitutional law perspective, this approach is also somewhat anomalous. It distinguishes the analysis of section 51(xxxi) from other rights and freedoms guaranteed by the Australian Constitution, such as the implied freedom (p. 1022) of political communication,40 and the express freedom of trade, commerce, and intercourse among the States.41 In the context of these other constitutional guarantees, the High Court’s technique of defining and limiting the scope of the relevant freedom characteristically includes: analysing the relevant values that the freedom protects; examining whether those values have been burdened by the impugned law; and evaluating the reasonableness of the burden by determining whether the law is ‘reasonable appropriate and adapted’ (or ‘proportionate’) to a legitimate end.

Such considerations are not in play in the context of section 51(xxxi). Instead, the Court has developed two sets of doctrinal techniques that rely on characterization analysis. These are described in the sections that follow. I suggest that neither approach is satisfying: both betray the Court’s ambivalence about the status of section 51(xxxi) as a constitutional guarantee.

2.  Techniques of Characterization Analysis

a)  The metaphysics of acquisition

The first and primary technique used to define and limit the scope of the Commonwealth’s constitutional obligation to pay compensation for regulatory expropriations relies on the metaphysical distinction between an ‘acquisition’ (where something is received) and a ‘mere deprivation’ (where something is taken, but nothing received). In developing this approach, the takings clause of the Fifth Amendment of the United States Constitution has served as an important foil.42 As Justice Mason explained in the Tasmanian Dam case:

The emphasis in s 51(xxxi) is not on a ‘taking’ of private property but on the acquisition of property. … [I]t is not enough that legislation adversely affects or terminates a pre-existing right that an owner enjoys in relation to his property; there must be an acquisition whereby the Commonwealth or another acquires an interest in property, however slight or insubstantial it may be.43

Thus whereas the United States Supreme Court openly engages in value-laden balancing of competing interests when determining whether a law merely regulates property or whether it effects a taking,44 the High Court has insisted that section (p. 1023) 51(xxxi) presents the more objective and straightforward task of determining whether the law can be characterized as a law with respect to the acquisition of property.45 Characterization analysis proceeds by examining facts about the law’s terms, its operation, and its practical effect on the rights, obligations, immunities, and liabilities of the relevant parties. It is alleged that difficult questions of value and balancing competing interests, which are ill-suited for judicial determination, are thereby avoided.

The difficulty with this contention, however, is that the metaphysics of acquisition is highly unreliable. Property has an inherently reciprocal nature insofar as it describes as set of relationships between persons with respect to things. As a result, laws that modify or extinguish a property interest will often result in the receipt of an interest or benefit by another, even if that was not the law’s intended effect.46 The breadth of the interpretation given to ‘property’ and ‘acquisition’ compound this difficulty. Accordingly, it has been conceded that the ‘[t]he dichotomy between extinguishment and acquisition cannot be pressed too far’.47 Moreover, numerous judgments have acknowledged that, in at least some circumstances, a deprivation can amount to an acquisition—particularly when a law has the effect of completely extinguishing or sterilizing a property right of all of its value.48 The dividing line between an ‘acquisition’ and a ‘mere deprivation’ in regulatory expropriation cases is therefore often a matter of degree and judgment. Considerations of value and reasonable limitations are of necessity in play.

An example will help illustrate. In the 2009 case ICM Agriculture,49 the State of New South Wales extinguished valuable statutory water licences pursuant to a section 96 grant from the Commonwealth made for water conservation purposes (and hence implicating section 51(xxxi)). ‘Bore licences’ were extinguished and replaced with ‘aquifer access licences’, resulting in a 70 per cent reduction in the plaintiff’s water entitlements. In arguing that this constituted an acquisition of property and not a mere deprivation, the plaintiff relied on Newcrest Mining,50 where the Court had held that a prohibition on operations for the recovery of minerals in a national park effected an acquisition of property. While acknowledging that the mineral resources were vested in the Crown at all material times, in Newcrest the (p. 1024) Court reasoned that the prohibition ‘was an effective sterilisation’ of the plaintiff’s rights under certain statutory mining licences,51 which thereby ‘enhanced’ ‘[t]he Commonwealth’s interest in respect of the minerals’.52

Given the reasoning in Newcrest, it was difficult to see how the law at issue in ICM Agriculture did not similarly effect an acquisition of property. Both cases concerned a valuable, limited natural resource that is vested in the Crown and allocated by statute via a licencing regime, providing limited statutory entitlements to exploit the resource. In both cases, the Crown’s title to the natural resource was encumbered by an obligation to regulate that resource in the public interest, and the statutory licencing scheme in question was enacted to fulfil that obligation. Moreover, it was evident in ICM Agriculture that the purpose of extinguishing bore licences and replacing them with licences with lesser entitlements was to enhance the quantity of a resource vested in New South Wales, which the State was then at liberty to choose to conserve or re-allocate.

In the result, however, the Court distinguished Newcrest Mining on the basis that extinguishing the bore licences effected a mere deprivation of the licence holders’ water entitlements. The crux of the majority’s reasoning was that water is an important natural resource that has long been vested in the Crown and therefore the State didn’t ‘acquire’ anything new.53 However, as just noted, the same was clearly true of the mineral resources at issue in Newcrest, so this did not serve to distinguish the facts of the case. Rather, the crucial distinguishing factor concerned the unique physical properties of water that have historically cast doubt on whether water can form the subject matter of ‘property’ at all, given the common law’s emphasis on physical possession. This point is emphasized in both judgments.54 Unlike mineral resources, water by its very nature is fluid and elusive: it ‘has no certain course, no defined limits, but … oozes through the soil in every direction in which the rain penetrates’, and it is subject to fluctuation due to seasonal rainfall and other climate events.55 Water is thus simply incapable of physical possession in the same manner as mineral resources, rendering talk of ‘acquisition’ metaphysically unmanageable and even incoherent.

This reasoning is highly dissatisfying. Even if the metaphysical point is correct—and whatever the limitations in the common law imagination of property—it is difficult to understand why the physical properties of a resource should dictate the outcome of a question concerning constitutional rights and obligations. Moreover, despite the Court’s insistence that the relevant constitutional question ‘neither (p. 1025) requires nor permits consideration of any of the large and difficult policy questions’ in play,56 it is evident that making value judgments and balancing competing interests are unavoidable in this context. Indeed there are indications in both sets of joint reasons that the Court was in fact persuaded by considerations that are appropriate to constitutional rights analysis. These included:

  1. 1.  the view that the conservation of water resources is an important social policy, particularly given the value of water to human life;57

  2. 2.  the view that the regulation of water entitlements via a statutory licencing regime is a rational method for achieving that social policy;58 and

  3. 3.  the view that the burden on property rights was reasonable, given the reciprocity of benefits and burdens inherent in such a regulatory scheme.59

The problem with the Court’s insistence on ‘acquisition’ as a metaphysical criterion is that considerations of this kind, which appear to play an important role in determining the outcome, are suppressed in the analysis. As a result, there is poor guidance. To be clear: this is not a criticism of the outcome, but a criticism of characterization analysis. The result in ICM Agriculture would have been better explained by openly articulating why, in the Court’s view, the burden that private property owners had to bear for the public good was justified, whereas in Newcrest it was not. Such an explanation is both available and plausible on the facts, but it requires embracing rights analysis.

b)  Categorical exemptions

A second set of techniques that the High Court has developed to limit the scope of regulatory expropriations is to define certain categories of laws that are exempt from the operation of section 51(xxxi). These techniques similarly rely on characterization analysis: if the law can be characterized as a law that falls within an exempt category, then there is no constitutional obligation to provide compensation. There are two sets of categories: subject matter-based categories, and characteristic-based categories.

i)  Subject matter-based categories

Subject matter-based categories represent a significant way of limiting the operation of section 51(xxxi). The exemption applies to certain topics of legislation for one of (p. 1026) two reasons: either there is a ‘contrary intention’ that is express or manifest in the grant of legislative power on that subject matter,60 or else the notion of ‘just terms’ is ‘inconsistent’, ‘incongruous’, or ‘irrelevant’ to the exercise of legislative power with respect to that subject matter.61 The core example of a categorically exempt subject matter is taxation. The purpose of taxation is the acquisition of property (within the wide meaning of ‘property’ for the purpose of section 51(xxxi)62). A constitutional obligation to provide compensation for taxation would therefore defeat the very purpose of the grant of the Commonwealth power of taxation.63

Although the categorical exclusion of taxation from the operation of section 51(xxxi) seems uncontroversial, other subject matter-based categories raise difficult questions. For instance, the High Court has consistently affirmed the categorical exclusion of forfeiture laws—that is, laws that prescribe the confiscation of property as a consequence of the breach of a legal norm—in the strongest possible terms. The exclusion of forfeiture laws from the ambit of section 51(xxxi) applies even where the forfeited property was owned by an innocent third party who had no involvement in or knowledge of the breach of the relevant legal norm,64 and even where the forfeited property was acquired by innocent means, unrelated to the breach of the relevant legal norm.65 For instance, in its most recent forfeiture decision, Emmerson, the High Court upheld a law that provided for the confiscation of all property owned by a person declared to be a ‘drug trafficker’ on the basis of past qualifying convictions, regardless of the connection between the property and the relevant drug-related offences.66 In defending an absolute categorical exemption even in such circumstances, where the result strikes many as extreme and unfair, the Court observed that ‘drastic’, ‘far-reaching’, and ‘draconian’ forfeiture laws have a long history in the common law world.67

This position is difficult to reconcile with the status of section 51(xxxi) as ‘a very great constitutional safeguard’.68 Although forfeiture, like taxation, necessarily (p. 1027) effects an acquisition of property, the purpose of forfeiture is not acquiring property but enforcing a legal norm of conduct. Yet in circumstances of the kind just described, it is arguable that the confiscation of property goes beyond what is necessary or reasonable to achieve that purpose. Such ‘disproportionality’ between ends and means may indicate that the forfeiture law is in fact an arbitrary confiscation of property, designed to achieve some other purpose besides the enforcement of a legal norm of conduct. In the Emmerson case, for instance, there was evidence that the law was enacted as a revenue-raising measure.69

Despite these concerns, there is no requirement of proportionality between the breach of the relevant legal norm of conduct and the property subject to forfeiture. Indeed the High Court has gone even farther, holding that it is both ‘irrelevant’ and ‘wrong’ for courts to analyse whether the forfeiture of property is a reasonable or proportionate response to ensuring compliance with legal norms.70 As the Court explained in Emmerson:

The proper inquiry … is the subject matter of the statutory scheme. The question is whether the statutory scheme can be properly characterised as a law with respect to forfeiture. … That inquiry … precludes any inquiry into the proportionality, justice or wisdom of the legislature’s chosen measures.71

This too is an area of section 51(xxxi) jurisprudence that betrays the limitations of characterization analysis. The Court has sometimes suggested that forfeiture laws that effect arbitrary confiscations of property are unlikely to be incidental to the source of legislative power under which the norm of conduct was enacted and therefore likely to be invalid for want of legislative power,72 even though not invalid for acquiring property on otherwise than just terms. However, counter examples such as Emmerson suggest that characterization analysis is the problem and not the solution. Characterization may be a method of analysis that is appropriate for determining the scope and content of a grant of legislative power, but it hardly seems appropriate for determining the scope and content of a constitutional guarantee.

ii)  Characteristic-based categories

The second set of categories that are exempt from the operation of section 51(xxxi) define a set of characteristics as the basis for categorical exemption. There are two predominant categories of this kind. The first category includes laws regulating property rights that are ‘inherently susceptible to variation, modification or extinguishment’.73 The second category includes laws that regulate property rights by way of ‘adjustments (p. 1028) of the competing rights, claims or obligations of persons in a particular relationship or area of activity’.74

These categories are less significant than subject matter-based categories because they have proven unstable in application, producing disagreement among members of the Court and leading to inconsistent results.75 The difficulty lies in defining their scope: both categories identify characteristics that arguably describe all laws that pose the problem of regulatory expropriations. Thus, while it has been conceded that ‘prima facie … a right which has no existence apart from statute is one that, of its nature, is susceptible of modification or extinguishment’,76 the proposition that that all statutory rights are ‘inherently susceptible to variation’ and therefore exempt from the operation of section 51(xxxi) has been firmly rejected.77 Similarly, while it has been acknowledged that all regulation of property rights involves the adjustment of competing rights, claims, or obligations in some sense, it is also clear that not all such laws are exempt from the requirement of compensation.78

Due to these difficulties, the status of characteristic-based categories as defining unqualified categorical exemptions from the operation of section 51(xxxi) has been called into question.79 Moreover, there is a trend in recent cases where the Court has declined to apply them in favour of re-asserting the distinction between acquisitions and mere deprivations as the central consideration. JT International, the recent constitutional challenge to Commonwealth legislation mandating plain packaging for tobacco products, provides a good example. In that case, the Court could have easily relied on the ‘inherently susceptible to variation’ and ‘adjustments’ categories to resolve the section 51(xxxi) issue. The property in question, various intellectual property rights held by tobacco companies, consisted of contingent statutory rights that were exercised in a heavily regulated area (tobacco packaging). However, the reasoning of all of the majority justices relied exclusively on the notion of an acquisition as metaphysically distinct from a mere deprivation, attempting to re-distance section 51(xxxi) analysis from American takings (p. 1029) jurisprudence by emphasizing that the determinative question is whether the law effects an acquisition.80 In addition, several justices cast doubt on the utility of characteristic-based categories.81

The trouble with both categories, as Kirby J once observed, is that ‘[t]hey postulate as self-evident a disqualifying feature that needs to be established convincingly when it is challenged’ and ‘the feature is assumed to act as a disqualification … without necessarily explaining why it has that effect.’82 This is an apt observation made by one of the most rights-conscious judges to serve on the High Court. Current analysis relying on these categories focuses on what purport to be purely formal features of particular kinds of laws. This approach is unhelpful and misleading. It is evident that underlying both characteristic-based categories are considerations that go to rights analysis, such as the protection of legitimate expectations (which goes to the values that section 51(xxxi) protects), and the reciprocity of socially shared benefits and burdens (which goes to reasonable limitations on the scope of protection afforded to those values). The better approach would be openly acknowledge and articulate these considerations.

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.

Footnotes:

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).

8  Amend V.

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 [109] (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 [305], 426 [309] (Kirby J).

19  See Weis (n 16).

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 [185] 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 [49] (Toohey J, dissenting), 35 [77] (Gaudron J).

28  See, eg, WMC Resources (n 20) 28 [49] (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 [332]–[339] (McHugh J).

35  Airservices Australia (n 12) 248 [333] (McHugh J); see also Tooth (n 26) 433 (Mason J). But see WMC Resources (n 20) 90 [237] (Kirby J, dissenting).

36  Airservices Australia (n 12) 250 [339] (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 [85] French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ; ICM Agriculture (n 6) 182 [90] Hayne, Kiefel and Bell JJ.

39  JT International SA v The Commonwealth of Australia (2012) 250 CLR 1, 119 [340] 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 [117] (Gummow J).

46  See WMC Resources (n 20) 16–17 [16] (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 [136] (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 [13] (Brennan CJ), 36 [80] (Gaudron J).

49  (n 6).

50  (n 22).

51  ibid 635 (Gummow J).

52  ibid 530 (Brennan CJ) (dissenting in the result, but agreeing on the acquisition issue).

53  ICM Agriculture (n 6) 179–80 [81]–[82] (French CJ, Gummow and Crennan JJ), 201–03 [147]–[154] (Hayne, Kiefel and Bell JJ).

54  ibid 173–74 [55]–[57] (French CJ, Gummow and Crennan JJ), 188–90 [109]–[112] (Hayne, Kiefel, and Bell JJ).

55  ibid 189 [110] (Hayne, Kiefel and Bell JJ) (citation omitted).

56  ibid 182 [90] (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 [90].

58  The history of the regulation of water entitlements is considered at length in both majority judgments: ibid 174–76 [58]–[67] (French CJ, Gummow and Crennan JJ), 191–95 [116] [129] (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 [6]–[7] 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 [60] (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).

65  Emmerson (n 18).

66  ibid.

67  ibid 416–19 [15]–[22] (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 [60] (Gummow, Kirby, Hayne, Heydon and Crennan JJ).

68  Tooth (n 26) 403 (Barwick CJ).

69  Emmerson (n 18) 408–09 (headnote), 437 [79] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).

70  ibid 435 [75] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).

71  ibid 438 [80] (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 [49] (Gleeson CJ, Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ); Wurridjal (n 4) 439–40 [363]–[364] (Crennan J).

78  See, eg, Airservices Australia (n 12) 299–300 [500] (Gummow J); ICM Agriculture (n 6) 226–28 [216] (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 [16] (Brennan CJ), 29–30 [53]–[56] (Toohey J, dissenting), 35–36 [78]–[79] (Gaudron J), 70 [182] (Gummow J), 91–92 [237] (Kirby J, dissenting).

80  JT International (n 39) 12 [30], 17–19 [41]–[44] (French CJ), 33 [100], 39–40 [116]–[118], 48–49 [144]–[145] (Gummow J), 54 [164], 55–57 [166]–[169] (Hayne and Bell JJ), 92–93 [278] (Crennan J), 120 [344], 123–29 [353] – [372] (Kiefel J).

81  ibid 11 [30] (French CJ), 30 [88] (Gummow J) (expressly holding that the ‘inherently susceptible to variation’ category could not resolve the matter).

82  Chaffey (n 77) 669 [44] (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 [222] 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 [237] 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 [2013] HCA 58 [36] (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 [131], 51–52 [133]–[34] (McHugh J).

92  JT International (n 39) 119 [340] (Kiefel J).

93  See, eg, Lawler (n 2) 284–85 (Deane and Gaudron JJ); WMC Resources (n 20) 34 [75] (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.