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When is property inherently defeasible for the purposes of s 51(xxxi)?

journal contribution
posted on 2012-01-01, 00:00 authored by Margaret Brock
This article traces the development of the jurisprudence surrounding compulsory acquisition of property with a particular focus on the application of s 51(xxxi) of the Australian Constitution to statutory property. The examination reveals a clearly articulated methodology developed by the High Court that is principled, transparent and logically consistent with the purpose of the provision. This is contrasted with two recent decisions of the High Court, ICM Agriculture Pty Ltd v Commonwealth and Phonographic Performance Company of Australia Ltd v Commonwealth which indicate a concerning development to move away from such methodology and introduce new factors for consideration. It is argued that such development threatens to undermine the principled and transparent application of s 51(xxxi) and may reintroduce unnecessary methodological uncertainty.

History

Journal

Australian property law journal

Volume

21

Issue

2

Pagination

180 - 192

Publisher

LexisNexis Butterworths

Location

Chatswood, N. S. W.

ISSN

1038-5959

Language

eng

Publication classification

C1 Refereed article in a scholarly journal; C Journal article

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