It was a question of construction whether any particular provision of the Constitution had a controlling operation upon it.[1]’ The Constitution of the Commonwealth began its life as a statute of the Imperial Parliament. While it is to be construed as a constitution and not as a mere Act of Parliament, its interpretation can be informed by common law principles in existence at the time of federation[2]. In this connection there is a principle long pre-dating federation that, absent clear language, statutes are not to be construed to effect acquisition of property without compensation. The principle was recognised by Blackstone[3]. It was put clearly by Bowen LJ in London and North Western Railway Co v Evans[4]:
"[T]he Legislature cannot fairly be supposed to intend, in the absence of clear words shewing such intention, that one man's property shall be confiscated for the benefit of others, or of the public, without any compensation being provided for him in respect of what is taken compulsorily from him."
The Court has restated its liberal approach to the construction of s 51(xxxi) over many years[5][200]. Recently in Telstra Corporation Ltd v The Commonwealth[201][6] the Court reaffirmed that s 51(xxxi) is concerned with matters of substance rather than form and that acquisition and property are to be construed liberally and said[202][7]:
"In the present case it is also useful to recognise the different senses in which the word 'property' may be used in legal discourse. Some of those different uses of the word were identified in Yanner v Eaton[203][8].
[1]Spratt v Hermes [1965] HCA 66; (1965) 114 CLR 226 at 242,High Court of Australia, where in BARWICK J stated about the jurisdiction of the Courts:” In thus dealing with the question of this Court's jurisdiction, I would not wish to be taken as prepared to decide that by an exercise of power under s. 122 of the Constitution, the Parliament may not give original jurisdiction to this Court in matters which do not fall within s. 76. That question has not heretofore been decided by this Court. It has been held both by the Privy Council and by this Court that the Parliament may give a right of appeal to this Court from the decisions of courts having jurisdiction in respect of occurrences in the territories of the Commonwealth and may impose jurisdiction upon this Court to hear and determine such appeals: see, for example, Attorney-General of the Commonwealth of Australia v. The Queen (1957) AC 288, at p 320; [1957] UKPCHCA 1; (1957) 95 CLR 529, at p 545 ; Porter v. The King; Ex parte Yee (1926) 37 CLR 432 ; Chow Hung Ching v. The King [1948] HCA 37; (1948) 77 CLR 449 . Such appellate jurisdiction has been exercised by this Court on a number of reported occasions: see, for example, Menges v. The King [1919] HCA 37; (1919) 26 CLR 369 ; Mainka v. Custodian of Expropriated Property [1924] HCA 20; (1924) 34 CLR 297 ; Tuckiar v. The King [1934] HCA 49; (1934) 52 CLR 335 ; Sparre v. The King [1942] HCA 19; (1942) 66 CLR 149 . (at p239)”
[2] This does not involve consideration of wider issues about the interaction between the common law and the Constitution: see Dixon, "The Common Law as an Ultimate Constitutional Foundation", (1957) 31 Australian Law Journal 240 and Gummow, "The Constitution: Ultimate Foundation of Australian Law?", (2005) 79 Australian Law Journal 167.
[3] Blackstone, Commentaries on the Laws of England, (1765), bk 1, c 1 at 134-135
[4] [1893] 1 Ch 16 at 28. See also Attorney-General v De Keyser's Royal Hotel [1920] UKHL 1; [1920] AC 508
[5] eg Attorney-General (Cth) v Schmidt [1961] HCA 21; (1961) 105 CLR 361 at 370-371; Clunies-Ross v The Commonwealth [1984] HCA 65; (1984) 155 CLR 193 at 201-202; Australian Tape Manufacturers Association Ltd v The Commonwealth [1993] HCA 10; (1993) 176 CLR 480 at 509; [1993] HCA 10; Mutual Pools & Staff Pty Ltd v The Commonwealth [1994] HCA 9; (1994) 179 CLR 155 at 172-173 per MASON CJ, 184-185 per DEANE and GAURDON JJ, 200 per DAWSON and TOOHEY JJ; Georgiadis v Australian and Overseas Telecommunications Corporation [1994] HCA 6; (1994) 179 CLR 297 at 303 per MASON CJ, DEANE and GAURDON JJ, 312 per BRENNAN J, 320 per TOOHEY J; [1994] HCA 6.
[6] (2008) 234 CLR 210; [2008] HCA 7.
[7] [2008] HCA 7; (2008) 234 CLR 210 at 230-231 [44].
[8] [1999] HCA 53; (1999) 201 CLR 351 at 365-367 [17]- [20] per GLEESON CJ, GAURDON, KIRBY and HAYNEE JJ, 388-389 [85]-[86] per GUMMOW J; [1999] HCA 53.
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