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French CJ

18.

Dixon J in the Bank Nationalisation case[1]. Section 51(xxxi) was said to extend to "innominate and anomalous interests" and to include "the assumption and indefinite continuance of exclusive possession and control for the purpose of the Commonwealth of any subject of property."[2] There is, however, an important distinction between a taking of property and its acquisition.

Taking involves deprivation of property seen from the perspective of its owner. Acquisition involves receipt of something seen from the perspective of the acquirer[3]. Acquisition is therefore not made out by mere extinguishment of rights. In an observation quoted and approved by the majority in Australian Tape Manufacturers Association Ltd v The Commonwealth[4], Mason J said in the Tasmanian Dam case[5]:

"To bring the constitutional provision into play it 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."

Importantly, the interest or benefit accruing to the Commonwealth or another person must be proprietary in character. On no view can it be said that the Commonwealth as a polity or by any authority or instrumentality, has acquired any benefit of a proprietary character by reason of the operation of the TPP Act on the plaintiffs' property rights. In this respect I agree with the reasons of Gummow J[6] and the reasons of Hayne and Bell JJ[7].

It may also be observed that the negative character of the plaintiffs' property rights leaves something of a logical gap between the restrictions on their enjoyment and the accrual of any benefit to the Commonwealth or any other

  1. ↑ Bank of NSW v The Commonwealth (1948) 76 CLR 1; [1948] HCA 7.
  2. ↑ (1948) 76 CLR 1 at 349.
  3. ↑ Georgiadis v Australian Overseas Telecommunications Corporation (1994) 179 CLR 297 at 304–305 per Mason CJ, Deane and Gaudron JJ, 315 per Dawson J, 320–321 per Toohey J; [1994] HCA 6.
  4. ↑ (1993) 176 CLR 480 at 499–500 per Mason CJ, Brennan, Deane and Gaudron JJ.
  5. ↑ The Commonwealth v Tasmania (1983) 158 CLR 1 at 145; [1983] HCA 21.
  6. ↑ Reasons of Gummow J at pp 48–52 [144]–[154].
  7. ↑ Reasons of Hayne and Bell JJ at p 59–62 [180]–[189].
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