Gummow J
38.
drawn in Smith Kline & French Laboratories (Aust) Ltd v Department of Community Services and Health[1].
The Fifth Amendment, which also applies to the States by the medium of the Fourteenth Amendment guarantee against the deprivation of property without due process of law[2], is expressed in the form of a negative[3], appears with the due process clause, and speaks of private property being "taken" for "public use". On the other hand, s 51(xxxi) is directed to the Parliament and speaks of "acquisition" for any "purpose" in respect of which there is federal legislative power. "Acquisition" is a term which indicates, as Gibbs J put it in Trade Practices Commission v Tooth & Co Ltd[4], "not every compulsory divesting of property is an acquisition within s 51(xxxi)".
It should be emphasised that under the Fifth Amendment, even if just compensation be made, the "taking" must be for "public use", that is to say for "the public good, the public necessity or the public utility"[5]. In Kelo v City of New London[6], the Supreme Court ruled that the federal judiciary should not make an independent judgment as to whether a taking of private property is for a "public use"; rather, the question is whether the government authority, federal, State or local, can make a rational argument that the taking resulted in a "public benefit".
- ↑ (1990) 22 FCR 73 at 116–117.
- ↑ PruneYard Shopping Center v Robins 447 US 74 at 82 (1980). Before the introduction of the Fourteenth Amendment, it had been decided by Marshall CJ, as a matter "not of much difficulty", that the Fifth Amendment was a constraint solely upon the Government of the United States: Barron v Baltimore 32 US 243 at 247 (1833); cf Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399 at 410 [13]–[14]; [2001] HCA 7.
- ↑ Thereby assuming there is an inherent or implied legislative power to take private property for public use: Worthing v Rowell and Muston Pty Ltd (1970) 123 CLR 89 at 99–100; [1970] HCA 19.
- ↑ (1979) 142 CLR 397 at 408; [1979] HCA 47.
- ↑ Rotunda and Nowak, Treatise on Constitutional Law, 4th ed (2007), vol 2, §15.13.
- ↑ 545 US 469 at 480–489 (2005). See also, with respect to the provision in the Constitution of Bermuda respecting freedom from "deprivation of property without compensation", the statements by Lord Hoffmann in Grape Bay Ltd v Attorney-General of Bermuda [2000] 1 WLR 574 at 585.
