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Published online by Cambridge University Press: 24 January 2025
1 J McLean (ed), Property and the Constitution (1999) hereafter Property and the Constitution.
2 K Gray and S Gray, “Private Property and Public Propriety” in ibid at 11.
3 Tom, Allen, “The Human Rights Act (UK) and Property Law” in ibid at 147Google Scholar and Geoffrey, Samuel, “The Many Dimensions of Propertyin” ibid at 40Google Scholar. Samuel's chapter investigates the public dimensions of property from civilian and common law perspectives
4 K Gray and S Gray, above n 2 at 11.
5 Especially K Gray, “Property in Thin Air” (1991) 50 CLJ 252.
6 K Gray and S Gray, above n 2 at 14. In Australia, see Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 at 511 per Aickin J.
7 K Gray and S Gray, above n 2 at 19.
8 Ibid at 15.
9 Ibid.
10 Ibid at 39.
11 Ibid at 19.
12 Ibid at 39.
13 It is most unfortunate that they use the slippery and uninformative term “quasi-public” for this domain.
14 K Gray and S Gray, above n 2 at 19-20.
15 Ibid at 21.
16 Ibid, quoting from F Michelman, “The Common Law Baseline and Restitution for the Lost Commons: A Reply to Professor Epstein” (1997) 64 U of Chicago LR 57 at 61.
17 K Gray and S Gray, above n 2 at 23-24.
18 Ibid at 29.Their arguments for limiting owners' exclusory powers in relation to gated communities and for scrutinising privatised public service utilities follow similar lines.
19 Ibid at 19.
20 The most sophisticated exponent of this view is RA Epstein, Takings: Private Property and the Power of Eminent Domain (1985). See also Lucas v South Carolina Coastal Council 505 US 1003 (1992). The competing views of the function of property are a theme of Gregory Alexander's chapter in Property and the Constitution, discussed below, text at n 26 and following.
21 For example, such a view appears to underlie Commonwealth v Western Australia (1999) 160 ALR 638 at 710-713 (paras 271-285) per Callinan J. Although that case concerned State property rather than property owned by a private citizen or corporation, both Gray and Gray and Janet McLean in her chapter argue that government owned property is technically subject to private ownership rather than any distinct ownership regime: K Gray and S Gray, above n 2 at 12-13, and J McLean, “Property as Power and Resistance” in Property and the Constitution 1 at 5-9.
22 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 566.
23 Ibid at 561-562.
24 There are some limited answers to be found in the Constitution. For example, it seems that the Constitution does not preclude government ownership of the means of production, distribution and exchange or government monopolies in (some but not necessarily all) economic activities: see for example the decision of Chief Commissioner Piddington of the Inter-State Commission in the Seizure of Wheat Case Parliamentary Paper No 69 of 1914-1915 at 29 (reprinted in Commonwealth Parliamentary Papers, Session 1914-1917, Volume 2, at 1113); Hughes and Vale Pty Ltd v NSW (1953) 87 CLR 49 at 87-88 per Webb J; Commonwealth v Bank of New South Wales (the Bank Nationalisation case) (1949) 79 CLR 497 (PC) at 640-641;cf Duncan v Queensland (1916) 22 CLR 556 at 649 per Higgins J.
25 Above, text at note 9 and following.
26 Alexander, G, “Constitutionalising Property: Two Experiences, Two Dilemmas” in Property and the Constitution 88 at 89Google Scholar
27 Ibid at 90.
28 Ibid at 91.
29 Ibid.
30 Ibid at 92.
31 Ibid at 92-93.
32 Ibid at 102.
33 A J van der Walt, “The Constitutional Property Clause: Striking a Balance Between Guarantee and Limitation” in Property and the Constitution at 109.
34 Ibid at 114. Van der Walt bases his analysis on J Nedelsky, “Should Property be Constitutionalized? A Relational and Comparative Approach” in GE van Maanen and A J van der Walt (eds), Property Law on the Threshold of the 21st Century (1996) at 417.
35 A J Van der Walt, above n 33 at 127.
36 Ibid at 127.
37 J W Harris develops the argument that property is such a second-order value in his chapter: “ls Property a Human Right?” in Property and the Constitution at 64.
38 A J van der Walt, above n 33 at 134.
39 I use this neutral term to avoid prejudging the choice between “limitation” and “guarantee” characterisations of the s 51(xxxi) jurisprudence.
40 Mutual Pools & Staff Pty Ltd v Commonwealth (1994) 179 CLR 155 at 177-178 per BrennanJ.
41 Including Mutual Pools & Staff Pty Ltd v Commonwealth (1994) 179 CLR 155; Health Insurance Commission v Peverill (1994) 179 CLR 226; Re Director of Public Prosecutions; Ex parte Lawler (1994) 179 CLR 270; Georgiadis v Australian & Overseas Telecommunications Corporation (1994) 179 CLR 297; Nintendo Co Ltd v Centronics Systems Pty Ltd (No 2) (1994) 181 CLR 134; Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513; Commonwealth v Mewett (1997) 191 CLR 471; Commonwealth v Western Mining Corporation Resources Ltd (1998) 194 CLR 1; Commonwealth v Western Australia (1999) 160 ALR 638; Airservices Australia v Canadian Airlines International Ltd [1999] HCA 62. Seealso Australian Tape Manufacturers Association Ltd v Commonwealth (1993) 176 CLR 480.
42 A J van der Walt, above n 33 at 133.
43 Ibid at 134.
44 See the cases cited in Commonwealth v Western Australia (1999) 160 ALR 638 at 644-645 note 10 per Gleeson CJ and Gaudron J. See also Mutual Pools and Staff Pty Limited v Commonwealth (1994) 179 CLR 155 at 168 per Mason CJ; at 178 per Brennan J, but cf at 180: “It would be erroneous to elevate the constitutional guarantee of just terms to a level which would so fetter other legislative powers as to reduce the capacity of the Parliament to exercise them effectively”; at 185 per Deane and Gaudron JJ. More recently, see Airservices Australia v Canadian Airlines International Ltd [1999] HCA 62 at paras 149-155 per Gaudron J;at para 525 per Hayne J; at paras 552,556 and 566 per Callinan J.
45 This, of course, is an instance of Nedelsky's fifth objection to property clauses: text above at n 34.
46 Georgiadis v Australian & Overseas Telecommunications Corporation (1994) 179 CLR 297; Commonwealth v Mewett (1997) 191 CLR 471.
47 Health Insurance Commission v Peverill (1994) 179 CLR 226 especially per Brennan J and McHugh J; Nintendo Co Ltd v Centronics Systems Pty Ltd (No 2) (1994) 181 CLR 134; Commonwealth v WMC Resources Ltd (1998) 194 CLR 1 especially per McHugh J (cf per Gummow J and Gaudron J).
48 Mutual Pools (1994) 179 CLR 155 at 219-220 per McHugh J; Airservices Australia v Canadian Airlines International Ltd [1999] HCA 62 at paras 339-342 per McHugh J.
49 Compare Gummow J's comments in a related context: Airservices Australia v Canadian Airlines International Ltd [1999] HCA 62 at para 441.
50 Official Record of the Debates of the Australasian Federal Convention: Third Session at 668 and following (8 February 1898); and at 1780 and following (3 March 1898). It is worth noting that the debate focussed on whether language similar to that of the 14th Amendment to the United States Constitution would prevent each Australian State from discriminating on the grounds of race or would require each State to afford the same treatment as the least discriminatory State. Protection of property did not figure to any significant extent inthese parts of the Debates.
51 A J van der Walt, above n 33 at 146. His account of the tortuous history of the constitutional protection of property under the Indian Constitution will also be of considerable interest to Australian constitutional property scholars.
52 A Frame, “Property and the Treaty of Waitangi: A Tragedy of the Commodities?” in Property and the Constitution at 224.
53 Ibid at 234.
54 Dawson, J, “A Constitutional Property Settlement Between Ngai Tahu and the New Zealand Crown” in Property and the Constitution at 207Google Scholar
55 Ibid at 215.
56 J Waldron, “The Normative Resilience of Property” in Property and the Constitution at 170.This paper also appears at (1998) 9 Otago LR 195.
57 Ibid at 186.
58 Ibid at 174.
59 Ibid at 176. Waldron considers briefly whether property is unique or unusual in demonstrating normative resilience. In his chapter, M M Goldsmith argues that it is neither: “Normative Resilience—A Response to Waldron” in Property and the Constitution at 197.
60 J Waldron, above n 57 at 185. Waldron is aware of the danger that these utilitarian arguments amount to too much, that is, that not only do they justify the normative resilience of property but they also amount to a conservative (type 1) justification of property that resists all changes to existing holdings (regardless of the justice of those holdings) because any attempt to do so would be profoundly disruptive (at 186-187). Although the Benthamite-utilitarian position that Waldron develops is not truly conservative (because it would allow redistribution of existing holdings if that was possible without causing the pain of disappointment to the holders and without causing uncertainty for other holders), the practical effects of the two approaches converge.
61 Radin, M J, “Property and Personhood” reprinted in Reinterpreting Property (1993) at 35. Waldron also finds support in Hume for this approach: J Waldron, above n 57 at 188-189Google Scholar
62 J Waldron, above n 56 at 183.
63 This point is also made by Goldsmith in his chapter: M M Goldsmith, above n 59 at 206.
64 Robertson, M, “Liberal, Democratic, and Socialist Approaches to the Public Dimensions of Private Property” in Property and the Constitution at 239Google Scholar
65 Ibid.
66 Ibid.
67 Ibid at 251.
68 Ibid at 259.
69 Ibid at 254.
70 His more specific prescription is for the co-operative to replace the corporation as the predominant economic actor (ibid at 261): “The co-operative is an economic form for the use of productive assets in which the democratic and socialist traditions can run together and reinforce each other while seeking to avoid the disasters produced by communism. It is a form in which the public dimensions of private property which are neglected by liberal thought are openly acknowledged. Indeed, it is chosen precisely to increase democratic participation and reduce power imbalances.”
71 For example: “[O]ne of the things a scientific community acquires with a paradigm is a criterion for choosing problems that, while they take the paradigm for granted, can be assumed to have solutions. To a great extent these are the only problems that the community will admit as scientific or encourage its members to undertake.” T S Kuhn, The Structure of Scientific Revolutions (3rd ed 1996) at 37. On law's aspiration to be a science, see P Schlag, “Law and Phrenology” (1997) 110 Harvard LR 877.
72 My formulation here may moderate Robertson's argument somewhat: compare M Robertson, above n 64 at 242.
73 Dawson also sees issues of governance of property resources as being central to the viability of the Ngai Tahu settlement: J Dawson, above n 54.