The drafting of the Australian Commonwealth Acquisitions Clause

Ostler, Duane L. (2009) The drafting of the Australian Commonwealth Acquisitions Clause. University of Tasmania Law Review, 28 2: 211-241.

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Author Ostler, Duane L.
Title The drafting of the Australian Commonwealth Acquisitions Clause
Journal name University of Tasmania Law Review   Check publisher's open access policy
ISSN 0082-2108
Publication date 2009
Sub-type Article (original research)
Open Access Status
Volume 28
Issue 2
Start page 211
End page 241
Total pages 31
Editor Tristan Taylor
Place of publication Australia
Publisher University of Tasmania
Collection year 2010
Language eng
Subject C1
180108 Constitutional Law
Formatted abstract
The Australian acqUlsltlOn 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 Australil;lll 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.
Q-Index Code C1
Q-Index Status Provisional Code
Institutional Status Non-UQ

Document type: Journal Article
Sub-type: Article (original research)
Collection: TC Beirne School of Law Publications
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Created: Wed, 08 May 2013, 13:17:42 EST by Carmen Buttery on behalf of T.C. Beirne School of Law