Crennan J
92.
Was the plaintiffs' property acquired?
Whether subsequent legislative prohibitions or restrictions on the use of incorporeal property created by statute will amount to an acquisition of property for the purposes of s 51(xxxi) must depend on the nature of the rights attaching to the incorporeal property, and whether, for the purposes of the Commonwealth, the prohibitions or restrictions: (a) give, or effectively give, the Commonwealth or another a right to use the incorporeal property wholly or partly to the exclusion of the owner; or (b) bestow some other identifiable benefit or advantage upon the Commonwealth or another which can be characterised as proprietary.
In The Commonwealth v Tasmania (The Tasmanian Dam Case)[1], when explaining the difference between a "taking" (the subject matter of the Fifth Amendment to the United States Constitution) and an "acquisition", with which s 51(xxxi) is concerned, Mason J said[2]:
"The emphasis in s 51(xxxi) is not on a 'taking' of private property but on the acquisition of property for purposes of the Commonwealth. To bring the constitutional provision into play it is not enough that [the] 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." (original emphasis)
The enduring authority of this statement of principle has been confirmed by this Court on numerous occasions[3], most recently in Wurridjal v The
- ↑ (1983) 158 CLR 1; [1983] HCA 21.
- ↑ (1983) 158 CLR 1 at 145. See also at 181–182 per Murphy J, 247 per Brennan J, 283 per Deane J.
- ↑ See Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 165 per Brennan J; [1992] HCA 45; Australian Tape Manufacturers Association Ltd v The Commonwealth (1993) 176 CLR 480 at 499–500 per Mason CJ, Brennan, Deane and Gaudron JJ, 528 per Dawson and Toohey JJ; Mutual Pools & Staff Pty Ltd v The Commonwealth (1994) 179 CLR 155 at 172173 per Mason CJ, 185 per Deane and Gaudron JJ; Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297 at 304 per Mason CJ, Deane and Gaudron JJ, 315 per Dawson J; Health Insurance Commission v Peverill (1994) 179 CLR 226 at 248–249 per Dawson J; [1994] HCA 8; Newcrest Mining (WA) Ltd v The Commonwealth ("Newcrest") (1997) 190 CLR 513 at 573 per McHugh J; [1997] HCA 38; The Commonwealth v WMC Resources Ltd (1998) 194 CLR 1 at 35 [77] per Gaudron J.
