Hayne J
Bell J
57.
of this Court had extended or overtaken the principle. They said that there need be no acquisition of "property", or of a benefit or advantage of a proprietary nature, to engage s 51(xxxi). But that submission must run aground on the bedrock that has been identified. A liberal construction of s 51(xxxi) cannot set the provision free from its text or the principle that the text establishes. A liberal construction cannot and does not go as far as the tobacco companies asserted, which would treat any benefit or advantage as a sufficient definition of the constitutional reference to "property".
Something more must be said about the decisions to which the tobacco companies referred in support of their arguments. Particular emphasis was given to statements made in The Commonwealth v Tasmania (The Tasmanian Dam Case)[1] and Mutual Pools & Staff Pty Ltd v The Commonwealth[2].
In The Tasmanian Dam Case Deane J made two statements of present relevance. First, he said[3] that where the Commonwealth or another obtains "an identifiable and measurable advantage … it is possible that an acquisition for the purposes of s 51(xxxi) is involved". Second, he decided[4], albeit with some hesitation, that the absence of a material benefit of a proprietary nature did not conclude whether there had been an acquisition of property in that case. The latter opinion was a dissenting view. It is a proposition that has not since been adopted or applied. The proposition does not accord with the constitutional text or with accepted principle. It should not be adopted. And having regard to what has been earlier identified as the bedrock for consideration of s 51(xxxi), the reference made by Deane J to "an identifiable and measurable advantage" must be understood as an advantage of a proprietary nature.
Likewise, the observations made[5] by Deane and Gaudron JJ in Mutual Pools, that a person must obtain "at least some identifiable benefit or advantage relating to the ownership or use of property" (emphasis added) and that there must be "some identifiable and measurable countervailing benefit or advantage", must be understood in the same way. None of these statements from either case sweeps away the requirement that there be an acquisition of property.
