Maximising Social Utility and Protecting Private Rights: Constitutional Property Rights in Australia

Abstract

Section 51(xxxi) of the Australian Constitution operates as one of the few rights-protecting provisions in the Constitution. It is framed as a grant of power to the Commonwealth Parliament that enables it to make laws with respect to the compulsory acquisition of property on just terms. However, it has been interpreted as a constitutional guarantee that withdraws from the Commonwealth Parliament any powers it might have had to make laws with respect to the acquisition of property other than on just terms. Unfortunately, the proper interpretation of s 51(xxxi) is unclear and contested and in some areas is close to incoherent. I argue in this Chapter that the complexity and contestedness is probably inevitable. Constitutional property clauses such as s 51(xxxi) attempt to mediate the perennial, and irreducibly moral, conflict between the need for stability of entitlements, on the one hand, and the need for flexibility and modification of entitlements in light of changed circumstances, on the other. The spare text of such clauses provides no secure criteria for resolving the conflict and the moral principles which might be called in aid are deeply contested. Most of the High Court's options for dealing with s 51(xxxi) are unappealing. However, there may be a way forward in an interpretive approach that directly recognises the primacy of political institutions in resolving the conflict between stability and flexibility, coupled with measures that increase the capacity of those institutions to address property rights issues.