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Gummow J

37.

deprivation or "taking". It is convenient first to say something respecting the position in the United States.

The Fifth Amendment

Reference was made in the submissions of various parties and interveners to decisions of the United States Supreme Court upon the "taking" clause of the Fifth Amendment.

Both in this provision and in s 51(xxxi) the term "property" is used with respect to the group of rights inhering in ownership and, as the Supreme Court put it, not in any "vulgar and untechnical sense"[1]. In this Court, it has been emphasised that "to characterise something as a proprietary right … is not to say that it has all the indicia of other things called proprietary rights" and that "the protection given to property rights varies with the nature of the right"[2]; this understanding of the general law has influenced the interpretation of s 51(xxxi).

Perhaps it was with this similarity of approach in mind that in 1941 Dixon J said in Andrews v Howell[3]:

"The source of s 51(xxxi) is to be found in the fifth amendment of the Constitution of the United States, which qualifies the power of the United States to expropriate property by requiring that it should be done on payment of fair compensation."

However, it has been apparent for some time that with respect to "taking" and "acquisition" some important distinctions are to be observed between the United States and Australian Constitutions. As early as 1944, McTiernan J, after referring to several decisions of the United States Supreme Court, said that the differences between the two constitutional provisions "would suggest a need for caution in the application of the American decisions regarding the power of eminent domain and the safeguards upon its exercise"[4]. Nine distinctions were

  1. ↑ United States v General Motors Corporation 323 US 373 at 377–378 (1945).
  2. ↑ Zhu v Treasurer of New South Wales (2004) 218 CLR 530 at 577 [135] per Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ; [2004] HCA 56.
  3. ↑ (1941) 65 CLR 255 at 282; [1941] HCA 20. Thereafter, in Grace Brothers Pty Ltd v The Commonwealth (1946) 72 CLR 269 at 290; [1946] HCA 11, Dixon J said that the phrase "on just terms" was "of course, reminiscent of the Fifth Amendment".
  4. ↑ Minister of State for the Army v Dalziel (1944) 68 CLR 261 at 295; [1944] HCA 4.
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