The Drafting of the commonwealth acquisition clause

Duane L. Ostler

Research output: Contribution to journalArticle

Abstract

The Australian acquisition clause, found in the Commonwealth Constitution at s 51 (xxxi), is worded as a grant of the power of eminent domain. Most Australian scholars feel it is quite different from the American takings clause, found in the Fifth Amendment of the United States of America (U.S.) Constitution. The distinct wording of the two clauses is often highlighted as proof that they are very different. However, the Australian Confederation debates in 1898 demonstrate that the Australian founders concern was chiefly to limit the acquisition power, just as the Americans had done with their Fifth Amendment. This is so even though the Australian acquisition clause is worded as an express grant of power, while the U.S. Fifth Amendment is not. The Australian founders sought to accomplish similar goals with their acquisition clause as the Americans did with their Fifth Amendment. Specifically, both groups of founders sought to provide three acquisition safeguards. The first is a form of due process or just terms to guarantee fairness. The second is the requirement of a public use or purpose related to the powers of government. The last is the requirement for compensation. The Confederation debates and statements by the Australian founders show their intention to incorporate in the new Commonwealth Constitution the elements of the Fifth Amendment that they thought were good, but with their own unique wording.
Original languageEnglish
Pages (from-to)211-241
Number of pages31
JournalUniversity of Tasmania law review
Volume28
Issue number2
Publication statusPublished - 2009

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