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Published online by Cambridge University Press: 01 January 2025
Although it is now generally accepted that s 51(xxxi) is a constitutional guarantee, it continues to be applied using characterisation analysis, the method of analysis used to apply grants of legislative power. This article argues that this is a mistake: if s 51(xxxi) is a constitutional guarantee, then it should be analysed like a constitutional guarantee. It takes to task the High Court's self-consciously comparative defence of characterisation analysis, which relies on the US Constitution's Fifth Amendment ‘takings clause’ as a foil. The article demonstrates that in some respects the differences between the two constitutional property clauses have been overstated, while in other respects they have been overlooked. From a broader comparative perspective, the most significant feature of s 51(xxxi) is not its use of the term ‘acquisition’, but its lack of reference to ‘compensation’ and use instead of the phrase ‘on just terms’. By resituating s 51(xxxi) in comparative perspective, the analysis provided in this article makes two important contributions. First, it deepens existing jurisprudential critiques by providing a more precise diagnosis of the problem with characterisation analysis. Second, it proposes and defends an alternative approach that is responsive to that diagnosis, that is better supported by the text and structure of s 51(xxx), and that is consistent with the High Court's commitment to the thesis that s 51(xxxi) is a constitutional guarantee.
I am grateful to Anne Carter, Dale Smith, and Adrienne Stone for their helpful suggestions and discussions; to Skye Chapman from the Academic Research Service for research assistance with the comparative materials; and, finally, to Graeme Hill and Jeremy Gans for the initial provocations that inspired me to write this article. This article has also benefitted from presentations to colleagues and friends of the Centre for Comparative Constitutional Studies at Melbourne Law School. The usual disclaimers apply.
1 Australian Tape Manufacturers Association Ltd v Commonwealth (1993) 176 CLR 480, 509 (Mason CJ, Brennan, Deane and Gaudron JJ) (‘ATM’). See also Clunies-Ross v Commonwealth (1984) 155 CLR 193, 201–2 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ) (holding that s 51(xxxi) ‘has assumed the status of a constitutional guarantee of just terms’); ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140, 212 [185] n 301 (Heydon J) (listing recent judgments affirming the proposition that s 51(xxxi) is a constitutional guarantee) (‘ICM Agriculture’).
2 Trade Practices Commission v Tooth & Co Ltd (1979) 142 CLR 397, 403 (Barwick CJ) (‘Tooth’).
3 Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513, 613 (Gummow J) (‘Newcrest Mining’).
4 Ibid 655, 661 (Kirby J).
5 The article therefore makes no effort to defend the view that s 51(xxxi) is correctly understood a constitutional guarantee—much less wider propositions concerning the status of property as a constitutional right or as a human right. Its aim is to consider problems that the High Court's commitment to the constitutional guarantee thesis poses for the current approach to s 51(xxxi), and to prescribe a solution that is consistent with the Court's acceptance of that thesis.
6 The status of s 51(xxxi) as a constitutional guarantee has been doubted by at least some commentators: see Rosalind, Dixon, ‘Overriding Guarantee of Just Terms or Supplementary Source of Power?: Rethinking s 51(xxxi) of the Constitution’ (2005) 27 Sydney Law Review 639Google Scholar. As noted in the conclusion of this article, another possible response to the critique developed in this article would be to abandon the constitutional guarantee thesis.
7 It bears emphasis that the purpose of comparison is critical: the analysis does not purport to be explanatory in the sense of causal or inference-driven. Case-selection principles that govern inference-oriented explanatory studies therefore do not apply.
8 This feature lends some plausibility to the suggestion that s 51(xxxi) is better understood as a supplementary grant of legislative power, see Dixon, above n 6, which would provide grounds for the use of characterisation analysis. For the purpose of the argument in this article, however, it is accepted that s 51(xxxi) is a constitutional guarantee: see above n 5.
9 This is the standard account of the so-called ‘Lochner era’ in the United States, although that account has been complicated in recent years: see David, E Bernstein, Rehabilitating Lochner: Defending Individual Rights against Progressive Reform (University of Chicago Press, 2011)Google Scholar.
10 For example, the decision to leave the right to property out of the Canadian Charter of Rights and Freedoms was directly influenced by the obstacle that the constitutional protection of property has presented for social welfare legislation in the United States: see Alexander, Alvaro, ‘Why Property Rights Were Excluded from the Canadian Charter of Rights and Freedoms’ (1991) 24 Canadian Journal of Political Science 309, 318Google Scholar; Sujit, Choudhry, ‘The Lochner Era and Comparative Constitutionalism’ (2004) 2 International Journal of Constitutional Law 1, 16–27Google Scholar.
11 For example, the Constitution of India was amended in 1978 to remove the expropriation clause, article 31, and to demote property from a ‘fundamental right’ to a mere ‘legal right’ (under the more modest article 300A): Constitution (Forty-Fourth Amendment) Act 1978 (India). The Forty-Fourth Amendment was enacted in response to the Supreme Court of India's invalidation of socioeconomic reform legislation under article 31 (among other fundamental rights).
12 Comparative Constitutions Project, Constitute <https://www.constituteproject.org/>. Forms of guidance include: general limitations on constitutional rights; specific limitations on constitutional property rights; interpretive guidance; and implied limitations from constitutional obligations that qualify the protection of property rights.
13 See Thomas, Allen, ‘Commonwealth Constitutions and the Right Not to Be Deprived of Property’ (1993) 42 International & Comparative Law Quarterly 523, 524–7Google Scholar; Duane, L Ostler, ‘The Drafting of the Australian Commonwealth Acquisition Clause’ (2009) 28 University of Tasmania Law Review 211Google Scholar.
14 Comparative Constitutions Project, Constitute <http://www.constituteproject.org>. The other three (Papua New Guinea, South Sudan, and Sudan) also use this phrase but expressly refer to a requirement of ‘compensation’ as well.
15 Ibid. Of these, ‘compensation’ is by far the most popular term (at 138), followed by ‘indemnification’ (at 21), ‘consideration’ (2), and ‘reimbursement’ (1). Of the remainder, 13 require only that expropriations be made by law, and two are formulated as power-conferring provisions limited to a set of narrowly-defined purposes.
16 Ibid. Forty constitutions refer to ‘acquisition’ or a cognate term.
17 Ibid. This accounts for 23 (a little over 50%) of the constitutions that refer to ‘acquisition’ or a cognate term.
18 See, eg, Georgiadis v Australian & Overseas Telecommunications Corporation (1994) 179 CLR 297, 303–4 (Mason CJ, Deane and Gaudron JJ); ATM (1993) 176 CLR 480, 509 (Mason CJ, Brennan, Deane and Gaudron JJ); Newcrest Mining (1997) 190 CLR 513, 568 (Gaudron J).
19 Or, perhaps even more narrowly: ‘with monetary compensation’. See Celia, Winnett, ‘Just Terms or Just Money? Section 51 (xxxi), Native Title and Non-Monetary Terms of Acquisition’ (2010) 33 University of New South Wales Law Journal 776Google Scholar.
20 See, eg, Airservices Australia v Canadian Airlines International Ltd (2000) 202 CLR 133, 252–3 (McHugh J) (using the phrase ‘fair compensation’ in place of the phrase ‘just terms’).
21 See ibid 247–50 [332]–[339] (McHugh J) (providing a good general discussion of the characterisation approach as it applies to s 51(xxxi), as well as relevant authorities).
22 Ibid 248 (McHugh J). See also Tooth (1979) 142 CLR 397, 433 (Mason J).
23 Airservices Australia v Canadian Airlines International Ltd (2000) 202 CLR 133, 250 [339] (McHugh J). But see Mutual Pools & Staff Pty Ltd v Commonwealth (1994) 179 CLR 155, 188 (Deane and Gaudron JJ) (‘Mutual Pools’).
24 See, eg, A-G (NT) v Emmerson (2014) 253 CLR 393, 439 [85] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) (‘Emmerson’); ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140, 182 [90] (Hayne, Kiefel and Bell JJ).
25 More broadly, modern, post-Second World War rights constitutionalism is associated with a non-definitional form of analysis, in the sense described here: employing a preliminary stage to determine whether there is a prima facie infringement of a constitutional right, and a second stage to determine whether this prima facie infringement is justified, which typically deploys a form of proportionality analysis. See Aharon, Barak, ‘Proportionality (2)’ in Michel, Rosenfeld & András, Sajó (eds), The Oxford Handbook of Comparative Constitutional Law (Oxford Universtiy Press, 2012) 739–42Google Scholar; Lorraine, Weinrib, ‘The Postwar Paradigm and American Exceptionalism’ in Sujit, Choudhry (ed), The Migration of Constitutional Ideas (Cambridge University Press, 2007) 93–8Google Scholar. For a discussion of this approach in the constitutional property rights context, which focuses on distinguishing it from the definitional (American) approach: see Gregory, S Alexander, The Global Debate Over Constitutional Property (University of Chicago Press, 2006)Google Scholar.
26 JT International SA v Commonwealth (2012) 250 CLR 1, 123 [340] (Kiefel J). Kiefel J used the phrase ‘just terms’ but meant compensation: see discussion below, Section V.B. I have substituted this language for the sake of clarity, since my proposal turns on a different interpretation of ‘on just terms’.
27 Cole v Whitfield (1988) 165 CLR 360, 391–2, 394.
28 Ibid 394–5, 409.
29 Ibid 409; Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436, 467 (Mason CJ, Brennan, Deane, Dawson and Toohey JJ) (‘Castlemaine Tooheys’).
30 Castlemaine Tooheys (1990) 169 CLR 436, 471–4 (Mason CJ, Brennan, Deane, Dawson and Toohey JJ); Betfair Pty Ltd v Western Australia (2008) 234 CLR 418, 476–8.
31 Under the orthodox formulation of the Lange test, analysing the validity of a law requires examining: (1) whether the law ‘effectively burden[s] freedom of communication about government or political matters either in its terms, operation or effect’; and if so, (2) whether the law is ‘reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government’. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 567, as modified in Coleman v Power (2004) 220 CLR 1, 50–1 [92]–[96] (McHugh J), 77–8 [196] (Gummow and Hayne JJ), 82 [211] (Kirby J). The second limb has recently been reformulated, by a 4:3 majority of the High Court, as requiring a structured proportionality test: McCloy v New South Wales (2015) 257 CLR 178, 194–5 [2]–[3] (French CJ, Kiefel, Bell and Keane JJ) (‘McCloy’). It is important to emphasise that nothing in my argument turns on whether limitations analysis is better formulated as a ‘reasonably appropriate and adapted’ criterion, or as a structured proportionality test: see discussion below, at 22. Similarly, nothing in my argument turns on whether limitations analysis appropriately incorporates a separate ‘balancing’ element, or indeed whether the question of ‘means-ends fit’ goes to uncovering illegitimate legislative purposes, or to wider considerations of proportionality.
32 See, eg, Mutual Pools (1994) 179 CLR 155, 189 (Deane and Gaudron JJ); Tooth (1979) 142 CLR 397, 413–5 (Stephen J).
33 This is how Dixon J described the purpose of s 51(xxxi) in Grace Bros Pty Ltd v Commonwealth (1946) 72 CLR 269, 291 (‘Grace Bros’). This view of the provision's purpose has been endorsed by several High Court justices over time: see, eg, Emmerson (2014) 253 CLR 393, 446 [109], 449 [119], 452 [132] (Gageler J, dissenting); ICM Agriculture 207 [176] (Heydon J, dissenting); JT International 124 [354] (Kiefel J); Mutual Pools 169 (Mason CJ); Newcrest Mining 659 (Kirby J); Peverill 255 (Toohey J); WMC Resources 26 [44] (Toohey J, dissenting).
34 See, eg, Dixon, above n 6, 661–3; Simon, Evans, ‘When is an Acquisition of Property Not an Acquisition of Property? The Search for a Principled Approach to Section 51(xxxi)’ (2000) 11 Public Law Review 183Google Scholar.
35 See, eg, Rosalind, Dixon, ‘The Functional Constitution: Re-Reading the 2014 High Court Constitutional Term’ (2015) 43 Federal Law Review 455, 477–80Google Scholar; Evans, above n 34, 198–204.
36 See Commonwealth v Tasmania (1983) 158 CLR 1, 247–8 (Brennan J) (‘Tasmanian Dam’).
37 Pennsylvania Coal Co v Mahon, 260 US 393, 415 (1922) (emphasis added).
38 Penn Central Transportation Co v City of New York, 438 US 104 (1978) (‘Penn Central’).
39 Ibid 124.
40 The qualifying adjective used in Penn Central is ‘distinct’. The term ‘reasonable’ was adopted in Palazzolo v Rhode Island, 533 US 606, 617 (2001) and is now well-established.
41 Penn Central 438 US 104, 124 (1978).
42 Lucas v South Carolina Coastal Council, 505 US 1003, 1018 (1992) (‘Lucas’).
43 Recent scholarship criticising the approach includes: David, Crump, ‘Takings by Regulation: How Should Courts Weigh the Balancing Factors’ (2012) 52 Santa Clara Law Review 1Google Scholar; Steven, J Eagle, ‘The Four-Factor Penn Central Regulatory Takings Test’ (2014) 118 Penn State Law Review 601Google Scholar; Mark, Fenster, ‘The Stubborn Incoherence of Regulatory Takings’ (2009) 28 Stanford Environmental Law Journal 525Google Scholar.
44 See Eagle, above n 43, 602 (describing the doctrine as ‘a compilation of moving parts that are neither individually coherent nor collectively compatible’).
45 The ‘character’ factor has been singled out as particularly problematic on this front, since it is unclear whether it is a factor that helps a property owner establish that she has a constitutionally protected interest, or whether it helps the state establish that the limitation imposed on the use and enjoyment of property is reasonable. See Fenster, above n 43, 529.
46 Crump, above n 43, 3; Eagle, above n 43, 644.
47 Crump, above n 43, 4; Eagle, above n 43, 605; Fenster, above n 43, 527–8.
48 Crump, above n 43, 45; Fenster, above n 43, 528.
49 See, eg, Tasmanian Dam (1983) 158 CLR 1, 247–8 (Brennan J); JT International (2012) 250 CLR 1, 52 [117] (Gummow J).
50 Tasmanian Dam (1983) 158 CLR 1, 247–8 (Brennan J). His Honour's reasoning on this point was approved by Gummow J, with whom French CJ agreed, in JT International (2012) 250 CLR 1, 52 [117].
51 See Commonwealth v WMC Resources Ltd (1998) 194 CLR 1, 16–17 [16] (Brennan CJ) (identifying the reciprocal nature of property rights as the reason why it is difficult to draw a sharp distinction between deprivations and acquisitions) (‘WMC Resources’).
52 Georgiadis (1994) 179 CLR 297, 321 (Toohey J). This statement was a concession to the majority, who found that there was an acquisition, whereas his Honour found that the law effected a mere deprivation.
53 See, eg, ibid 305 (Mason CJ, Deane and Gaudron JJ); JT International (2012) 250 CLR 1, 59 [136] (Gummow J); Mutual Pools (1994) 179 CLR 155, 173 (Mason CJ), 175 (Brennan CJ), 194 (Dawson and Toohey JJ), 223 (McHugh J); Health Insurance Commission v Peverill (1994) 179 CLR 226, 236 (Mason CJ, Deane and Gaudron JJ) (‘Peverill’); WMC Resources (1998) 194 CLR 1, 15 [13] (Brennan CJ), 36 [80] (Gaudron J).
54 (2009) 240 CLR 140.
55 (1997) 190 CLR 513.
56 Ibid 635 (Gummow J).
57 Ibid 530 (Brennan CJ) (dissenting in the result, but agreeing on the acquisition issue).
58 ICM Agriculture (2009) 240 CLR 140, 179–80 [81]–[82] (French CJ, Gummow and Crennan JJ), 201–3 [147]–[154] (Hayne, Kiefel and Bell JJ).
59 Ibid 173–4 [55]–[57] (French CJ, Gummow and Crennan JJ), 188–90 [109]–[112] (Hayne, Kiefel, and Bell JJ).
60 Ibid 189 [110] (Hayne, Kiefel and Bell JJ) (citation omitted).
61 Ibid 182 [90] (Hayne, Kiefel and Bell JJ).
62 Ibid. For instance, at the outset of the joint reasons of Hayne, Kiefel and Bell JJ, their Honours acknowledge that, ‘water and rights to use water are of critical importance … to society as a whole’.
63 Ibid 174–6 [58]–[67] (French CJ, Gummow and Crennan JJ), 191–5 [116]–[129] (Hayne, Kiefel and Bell JJ). The history of the regulation of water entitlements is considered at length in both majority judgments.
64 Ibid 159–60 [6]–[7] (French CJ, Gummow and Crennan JJ). Arguably, important considerations here were the fact that the licence holders’ rights were replaced rather than simply eliminated, and the fact that they received structural adjustment payments to help offset their losses.
65 To be clear: this is a point about the reasoning process, not the substantive outcome.
66 Lucas, 505 US 1003, 1015 (Scalia J) (1992).
67 Loretto v Teleprompter Manhattan CATV Corporation 458 US 419, 436 (Marshall J) (1982).
68 See, eg, Georgiadis (1994) 179 CLR 297, 305–6 (Mason CJ, Deane and Gaudron JJ); Peverill (1994) 179 CLR 226, 237 (Mason CJ, Deane and Gaudron JJ).
69 See, eg, Nintendo Co Ltd v Centronics Systems Pty Ltd (1994) 181 CLR 134, 161 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ).
70 See Re DPP; Ex parte Lawler (1994) 179 CLR 270, 285 (Deane and Gaudron JJ) (‘Lawler’); Theophanous v Commonwealth (2006) 225 CLR 101, 126 [60] (Gummow, Kirby, Hayne, Heydon and Crennan JJ) (‘Theophanous’).
71 This was the issue presented in Palazzolo v Rhode Island, 533 US 606 (2001).
72 This was the issue presented in Lucas, 505 US 1003 (1992).
73 Ibid 1030–1 (Scalia J).
74 Albeit by partially displacing them to state courts: in the United States, nuisance, like all common law matters, is a question of state law which is ultimately determined by the apex state court in each state.
75 See, eg, Georgiadis (1994) 179 CLR 297, 305–6 (Mason CJ, Deane and Gaudron JJ).
76 See, eg, A-G (NT) v Chaffey (2007) 231 CLR 651, 664 (Gleeson CJ, Gummow, Hayne and Crennan JJ), 669 (Kirby J), 671 (Callinan J) (‘Chaffey’); Telstra Corporation Ltd v Commonwealth (2008) 234 CLR 210, 232 [49] (Gleeson CJ, Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ); Wurridjal v Commonwealth (2009) 237 CLR 309, 439–40 [363]–[364] (Crennan J) (‘Wurridjal’).
77 The Court has acknowledged that the ‘adjustment of competing rights, claims or obligations’ category presents the same problem. See, eg, Airservices Australia (2000) 202 CLR 133 , 299–300 [500] (Gummow J); ICM Agriculture (2009) 240 CLR 140, 226–8 [218] (Heydon J); WMC Resources (1998) 194 CLR 1, 98–9 (Kirby J).
78 Cf Airservices Australia (2000) 202 CLR 133, 225 (McHugh J), 300 (Gummow J) 304–5 (Hayne J), 155–6 (Gaudron J) (reaching opposite conclusions about the application of the ‘adjustments’ category to the facts); Georgiadis (1994) 179 CLR 297, 305–6 (Mason CJ, Deane and Gaudron JJ), 327–8 (McHugh J) (reaching opposite conclusions about the application of the ‘inherently susceptible’ category to the facts).
79 JT International (2012) 250 CLR 1, the recent constitutional challenge to Commonwealth legislation mandating plain packaging for tobacco products, is an excellent example of this trend. See Lael K Weis, ‘Property’ in Cheryl Saunders and Adrienne Stone (eds), The Oxford Handbook of Australian Constitutional Law (forthcoming).
80 Loretto v Teleprompter Manhattan CATV Corporation 458 US 419, 432–5 (1982).
81 It is accepted that money is ‘property’ for s 51(xxxi) purposes, a consequence of the wide construction that has been given to that term: ATM (1993) 176 CLR 480, 509 (Mason CJ, Brennan, Deane and Gaudron JJ).
82 See, eg, ATM (1993) 176 CLR 480, 508–9 (Mason CJ, Brennan, Deane and Gaudron JJ); Newcrest Mining (1997) 190 CLR 513, 654 (Kirby J).
83 Mutual Pools (1994) 179 CLR 155, 224 (McHugh J).
84 ATM (1993) 176 CLR 480, 526 (Dawson and Toohey JJ).
85 Mutual Pools (1994) 179 CLR 155, 198 (Dawson and Toohey JJ) (responding to McHugh J), 220 (McHugh J) (responding to Dawson and Toohey JJ).
86 Burton v Honan (1952) 86 CLR 169 (‘Burton’) (upholding the forfeiture of an illegally imported car that was in possession of a bona fide purchaser for value); Lawler (1994) 179 CLR 270 (upholding the forfeiture of a leased fishing vessel where the owners had no knowledge of the lessees’ illegal fishing activities, were unlikely to recover from the lessees, and where the lessees had also paid a fine).
87 Emmerson (2014) 253 CLR 393.
88 Ibid.
89 Ibid 408–9, 437 [79] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
90 Ibid 416–9 [15–22] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ). The Court has emphasised this point in other cases as well: see, eg, Burton (1952) 86 CLR 169, 178–9 (Dixon CJ); Lawler (1994) 179 CLR 270, 280 (Brennan J), 289 (Dawson J), 294 (McHugh J); Theophanous (2006) 225 CLR 101, 126 [60] (Gummow, Kirby, Hayne, Heydon and Crennan JJ).
91 Tooth (1979) 142 CLR 397, 403 (Barwick CJ).
92 Chaffey (2007) 231 CLR 651, 669 [44] (Kirby J).
93 It should be stated at the outset that the approach outlined below does not apply to the direct expropriation of property (i.e. cases implicating the powers of eminent domain). As noted above (see Section III page 231), direct expropriation cases raise a different set of issues because there is no dispute about whether compensation is constitutionally required. This is consistent with reinterpreting ‘on just terms’ as a requirement of justification. The question of ‘justification’ in the context of direct expropriations goes to: (1) the purpose of the expropriation, and (2) the measure of compensation provided, leaving open the possibility of additional requirements concerning procedural fairness or the form of compensation that might follow from a broader reading of ‘on just terms’. If a direct expropriation is not for a ‘purpose in respect of which the Parliament has power to make laws’, or the measure of compensation is inadequate, then it is not ‘on just terms’.
94 See, eg, Ostler, above n 13, 232–5 (fair dealing); Tom, Allen, ‘The Acquisition of Property on Just Terms’ (2000) 22 Sydney Law Review 351, 369–75Google Scholar (measure of compensation); Winnett, above n 19 (non-monetary compensation).
95 The proposal defended here can thus be distinguished from defences of proportionality analysis of the kind advanced in: Allen, above n 94; Dixon, above n 6.
96 Because s 51(xxxi) is also a legislative power-conferring provision, so long as the acquisition of property is ‘for any purpose in respect of which the Parliament has power to make laws’, then the appropriate remedy for an unjustified acquisition of property is compensation. Injunctive remedies (i.e. the invalidation of legislation that effects an acquisition) should be available if and only if the Commonwealth does not have the power to acquire the property: that is, if the purpose of the acquisition is not a ‘purpose in respect of which the Parliament has power to make laws’.
97 See McCloy (2015) 257 CLR 178; Murphy v Electoral Commissioner (2016) 90 ALJR 1027 ('Murphy’).
98 (2012) 250 CLR 1.
99 Ibid 86 [232]–[234] (Heydon J) (suggesting that limitations analysis is incompatible with the exercise of judicial power).
100 Ibid 64 [156] (Gummow J), 73 [189] (Hayne and Bell JJ), 110 [307] (Crennan J), 124 [344] (Kiefel J). Only French CJ ruled out this possibility.
101 Ibid 121–4 [332]–[344].
102 Ibid 122 [337].
103 Ibid 123 [339]–[340].
104 Ibid 123 [340].
105 Ibid (emphasis added).
106 The proposal can thus be distinguished from, although is not necessarily incompatible with, other proposals to give the phrase a broader interpretation for the purpose of encompassing other considerations, such as procedural fairness, and the measure and form of compensation: see above n 94 and accompanying text.
107 See Ostler, above n 13, 232–5.
108 See, eg, Emmerson (2014) 253 CLR 393, 446 [109] (Gageler J); Grace Bros (1946) 72 CLR 269 (Latham CJ), 285 (Starke J), 290–1 (Dixon J); Nelungaloo Pty Ltd v Commonwealth (1952) 85 CLR 545, 569 (Dixon J), 600 (Kitto J); Wurridjal (2009) 237 CLR 309, 425 [305], 426 [309] (Kirby J).
109 WMC Resources (1998) 194 CLR 1, 102–3 [262] (Kirby J).
110 See Allen, ‘The Acquisition of Property on Just Terms’, above n 94, 369–75; Winnett, above n 19, 777–86.
111 As evident in the debates between the joint judgment and other judgments in McCloy (2015) 257 CLR 178, and more recently in Murphy (2016) 90 ALJR 1027.
112 See discussion in section IV.A (using ICM Agriculture (2009) 240 CLR 140 as an example).
113 This article does not take a position on whether there are general reasons for preferring non-definitional forms of rights analysis that extend to other constitutional guarantees.
114 The point made here is analogous to the point that Frederick Schauer has made about the significance of the distinction between the ‘coverage’ of a right and the ‘protection’ afforded to that right: see Frederick, Schauer, Free Speech: A Philosophical Enquiry (Cambridge University Press, 1982), 89–91Google Scholar. The concern is that definitional approaches conflate a right's ‘coverage’ with its ‘protection’.
115 (2009) 240 CLR 140.
116 A compelling case for this view has been presented by Rosalind Dixon, above n 6.
117 This is the view of Kirby and Heydon JJ: see, eg, ICM Agriculture (2009) 240 CLR 140, 230 [222] (Heydon J) (criticising characterisation analysis on the basis that it ‘saps s 51(xxxi) of content in a manner inconsistent with its frequent recognition as an important constitutional guarantee’); WMC Resources (1998) 194 CLR 1, 90 [237] (Kirby J).
118 This is the view of McHugh J, who has been the most vocal dissenter from the constitutional guarantee thesis in recent years: see, eg, WMC Resources (1998) 194 CLR 1, 50 [131], 51–2 [133]–[134] (holding that if Parliament can use a head of power to create a property right, then it can rely on the same head of power to modify or extinguish that right.) In addition, at least some other members of the Court have expressed reservations about the status of s 51(xxxi) as a constitutional guarantee in response to the interpretive challenges presented by the problem of regulatory expropriations: see, eg, Lawler (1994) 179 CLR 270, 284–5 (Deane and Gaudron JJ); Newcrest Mining (1997) 190 CLR 513, 552 (Dawson J); WMC Resources (1998) 194 CLR 1, 34 [75] Gaudron J). As noted above, this is also one way of understanding Kiefel J's remarks in JT International (2012) 250 CLR 1.