Section 51(xxxi) of The Constitution of Australia

Section 51(xxxi) Of The Constitution Of Australia

Section 51 and sub-section (xxxi) states:

  • "The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:
  • (i-xxx)
  • (xxxi) the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws;"

The language of s 51(xxxi) was adapted from the final words of the Fifth Amendment to the United States Constitution. Unlike the American provision, however, it is primarily a grant of Commonwealth law-making power. It is clear that the requirement of "just terms" does not affect the State Parliaments. In Grace Bros Pty Ltd v The Commonwealth (1946) Justice Dixon stated that the inclusion of the condition was to "prevent arbitrary exercises of the power at the expense of a State or a subject."

The interpretation of the terms "acquisition" and "just terms" by the High Court of Australia have had the effect, however, of limiting its protection of property rights. Moreover, it operates at any time the Commonwealth makes a compulsory acquisition of property. As such, it is a contingent guarantee rather than a general constitutional right or freedom to enjoy property rights.

The Commonwealth may only acquire property on just terms for a "purpose in respect of which the Parliament has power to make laws". This means that every law supported by s 51(xxxi) must also be supported by at least one additional legislative power.

The effect of the section was the subject of the Australian film The Castle.

Read more about Section 51(xxxi) Of The Constitution Of Australia:  Property, Acquisition, Just Terms

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