University of New South Wales Faculty of Law Research Series
Last Updated: 5 October 2012
Section 51(xxxi) and the Acquisition of Property Under Commonwealth-State Arrangements: The Relevance to Native Title Extinguishment on Just Terms
Sean Brennan, University of New South Wales
paper is available for download at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2153600
This article was published in the Australian
Indigenous Law Review (2011), Vol.15, at 74-86. This paper may also be
referenced as  UNSWLRS 45.
While the federal government in Australia must accord
‘just terms’ to a divestee for ‘acquisitions of
the constitutional situation for sub-national State governments
is different. Under flexible State constitutions, which steer closer
classic Westminster model of parliamentary sovereignty, the States are
understood to have a virtually unlimited power of eminent
domain. However recent
litigation in the High Court of Australia has emphasised that acquisitions
pursuant to Commonwealth-State
intergovernmental arrangements can attract the
just terms guarantee in the federal constitution. This is so even though the
act of expropriation occurs under State law.
This article unpacks the four-step process by which the High Court achieves this result in doctrinal terms. It also points out a basic ‘aggregationist’-‘disaggregationist’ division of opinion within the High Court, which in turn reflects ambivalence about how far the judiciary should go in enforcing the constitutional protection of property rights. The article then turns to native title, the pre-existing property right of Australia’s first peoples, which was initially recognised by the High Court in the Mabo decision in 1992. The extinguishment of native title in Australia mostly occurs through State rather than federal action, whether by legislatures or executives. But the federal Native Title Act establishes a national set of extinguishment principles binding on the States, backdated to 1975 when an important non-discrimination statute took effect. The States have enacted complementary legislation embodying the same extinguishment principles.
The article applies the recent High Court developments reviewed earlier and concludes that the just terms guarantee can apply to native title extinguishment by States under this interlocking arrangement.