Heydon J
66.
Deane J's reasoning in the Tasmanian Dam Case does not stand alone. Parts of it have been quoted with approval[1]. Parts of it have been referred to with approval[2]. And parts of it have also been approved without specific acknowledgment. Thus in Smith v ANL Ltd[3], Callinan J referred to Mason J's statement in the Tasmanian Dam Case that s 51(xxxi) depends on "an acquisition whereby the Commonwealth or another acquires an interest in property, however slight or insubstantial it may be." [4] Callinan J described this as "the narrow view"[5]. Mason J had quoted and adopted a passage from Dixon J's reasoning in Bank of NSW v The Commonwealth[6]. Callinan J said[7]:
"I do not myself discern in that passage from the judgment of Dixon J any express, or indeed implied, support for the narrow view which Mason J took of the provision in the Tasmanian Dam Case, or, for the attachment of any great significance to any distinction between a taking or an acquisition, whether perceived or actual."
His Honour also said[8]:
"in my respectful opinion, in the Tasmanian Dam Case, it is easy to see that the Commonwealth really did acquire something, and that was a thing
- ↑ Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297 at 315–316 per Dawson J (in relation to "effective acquisition"); [1994] HCA 6; Commonwealth v WMC Resources Ltd (1998) 194 CLR 1 at 96 [246] per Kirby J; [1998] HCA 8; The Commonwealth v Western Australia (1999) 196 CLR 392 at 488–489 [283] per Callinan J; Airservices Australia v Canadian Airlines (1999) 202 CLR 133 at 245 [326] per McHugh J; [1999] HCA 62; ICM Agriculture Pty Ltd v The Commonwealth (2009) 240 CLR 140 at 232 [225].
- ↑ Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 634 n 374 per Gummow J; The Commonwealth v WMC Resources Ltd (1998) 194 CLR 1 at 35 [77] n 123 per Gaudron J; Smith v ANL Ltd (2000) 204 CLR 493 at 542 [157] n 179.
- ↑ (2000) 204 CLR 493 at 545 [164].
- ↑ (1983) 158 CLR 1 at 145.
- ↑ Smith v ANL Ltd (2000) 204 CLR 493 at 546 [166].
- ↑ (1948) 76 CLR 1 at 349.
- ↑ Smith v ANL Ltd (2000) 204 CLR 493 at 546 [166].
- ↑ Smith v ANL Ltd (2000) 204 CLR 493 at 546 [166].
