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You searched for subject:(51 xxxi ). Showing records 1 – 2 of 2 total matches.

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University of New South Wales

1. Lewis, Ilan. Sussing out the vibe: Federal property acquisition and the search for a principled approach to the scope of the ‘just terms’ proviso in s 51(xxxi) of the Australian Constitution.

Degree: Law, 2017, University of New South Wales

In relation to the case law dealing with the scope of s 51(xxxi) of the Australian Constitution (‘the Proviso’) it has been suggested that no coherent line of principle emerges, that one meets undisclosed processes of reasoning and that, as a consequence, the Proviso’s operation is unpredictable. This dissertation gives an account and critique of the increasing incoherence of s 51(xxxi) jurisprudence and the High Court’s failure to articulate the constitutional values the Proviso serves to protect. A comprehensive account is given of the Proviso’s inherent interpretive challenges and the various approaches the High Court has adopted to tackle them.The thesis considers in detail the Proviso’s complex interrelationships with other constitutional powers and limitations. It is argued that understanding these interrelationships is a necessary pre-requisite to understanding the problems the Proviso throws up and the formulation of possible solutions. In this context, it considers whether the Proviso’s protective scope can be coherently described as a function of whether or not a given acquisition operates arbitrarily or breaches various tenets of the rule of law. Are decisions dealing with the Proviso’s scope explicable on the basis that the Proviso operates to proscribe legislation which offends such principles as non-retrospectivity, generality and the separation of powers - at least in the property domain? Four cases dealing with the application of the Proviso to what might be called ‘retrospective interests,’ that is, interests arising by way of the retrospective operation of judicial decisions are analysed in detail. It is argued that by excising these types of cases from the mainstream of s 51(xxxi) jurisprudence an opportunity to clarify other areas of doctrine and reconcile other decisions opens up. Finally, various accounts of the Proviso’s purpose or function are evaluated. The thesis concludes that, while various rule of law principles provide a useful guide to understanding the High Court’s decisions in many instances, there exist a number of hard limits on reconciling existing case law and that it is easy to overstate the degree of coherence to be found within it. Advisors/Committee Members: Edgeworth, Brendan, Law, Faculty of Law, UNSW, Roux, Theunis, Law, Faculty of Law, UNSW.

Subjects/Keywords: just terms; 51(xxxi); Australian Constitution; vibe

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APA · Chicago · MLA · Vancouver · CSE | Export to Zotero / EndNote / Reference Manager

APA (6th Edition):

Lewis, I. (2017). Sussing out the vibe: Federal property acquisition and the search for a principled approach to the scope of the ‘just terms’ proviso in s 51(xxxi) of the Australian Constitution. (Masters Thesis). University of New South Wales. Retrieved from http://handle.unsw.edu.au/1959.4/57966 ; https://unsworks.unsw.edu.au/fapi/datastream/unsworks:45204/SOURCE02?view=true

Chicago Manual of Style (16th Edition):

Lewis, Ilan. “Sussing out the vibe: Federal property acquisition and the search for a principled approach to the scope of the ‘just terms’ proviso in s 51(xxxi) of the Australian Constitution.” 2017. Masters Thesis, University of New South Wales. Accessed April 21, 2021. http://handle.unsw.edu.au/1959.4/57966 ; https://unsworks.unsw.edu.au/fapi/datastream/unsworks:45204/SOURCE02?view=true.

MLA Handbook (7th Edition):

Lewis, Ilan. “Sussing out the vibe: Federal property acquisition and the search for a principled approach to the scope of the ‘just terms’ proviso in s 51(xxxi) of the Australian Constitution.” 2017. Web. 21 Apr 2021.

Vancouver:

Lewis I. Sussing out the vibe: Federal property acquisition and the search for a principled approach to the scope of the ‘just terms’ proviso in s 51(xxxi) of the Australian Constitution. [Internet] [Masters thesis]. University of New South Wales; 2017. [cited 2021 Apr 21]. Available from: http://handle.unsw.edu.au/1959.4/57966 ; https://unsworks.unsw.edu.au/fapi/datastream/unsworks:45204/SOURCE02?view=true.

Council of Science Editors:

Lewis I. Sussing out the vibe: Federal property acquisition and the search for a principled approach to the scope of the ‘just terms’ proviso in s 51(xxxi) of the Australian Constitution. [Masters Thesis]. University of New South Wales; 2017. Available from: http://handle.unsw.edu.au/1959.4/57966 ; https://unsworks.unsw.edu.au/fapi/datastream/unsworks:45204/SOURCE02?view=true


University of Adelaide

2. Stubbs, Matthew Thomas. The eminent domain in Australia: the ’individual rights’ approach to s 51 (xxxi) of the Australian Constitution.

Degree: 2011, University of Adelaide

The interpretation of ‘acquisition of property on just terms’ in s 51(xxxi) of the Australian Constitution is contested. This thesis re-evaluates the historical, theoretical and comparative contexts of the placitum, and comprehensively examines the High Court’s s 51(xxxi) jurisprudence since Federation, in order to identify the best interpretation of the placitum – that is, one which is contextually coherent, doctrinally consistent and capable of resolving current interpretive controversies. The genesis of s 51(xxxi) is traced to two traditions: the English constitutional protection of private property expressed in the theory of Locke and Blackstone, as reflected in nineteenth century legislative practice in England and the Australian Colonies; and the European public law theory of eminent domain, as constitutionalised in the United States. Both traditions required full market-value compensation in every individual case when private property was appropriated. This was the understanding of s 51(xxxi) reflected in the Convention Debates and other relevant historical materials, and these contexts were habitually referenced by the Framers of the Australian Constitution. To the extent that the American experience contained a more robust justification for the requirement of compensation, and had been rigorously enforced by the Courts, s 51(xxxi) followed the American model. This is the interpretation of s 51(xxxi) adopted by the High Court for the first forty years: one focussed on the placitum’s purpose of protecting ‘individual rights’, and not on its role in conferring a ‘legislative power’. This changed after World War Two, when Justice (and later Chief Justice) Dixon led the Court away from its earlier jurisprudence and from the contextual understanding of s 51(xxxi), replacing the focus on the individual with a dominant concern to maximise legislative power. The s 51(xxxi) jurisprudence has never fully recovered from this deviation, despite increasing instances of reversion to aspects of the ‘individual rights’ approach over the ensuing years. To the extent that agreed difficulties remain in the Court’s interpretation of s 51(xxxi), this thesis demonstrates that the complete adoption of the ‘individual rights’ approach is the only contextually coherent and doctrinally consistent solution to those difficulties, given the historical, theoretical and comparative contexts of s 51(xxxi) and the development of the High Court’s jurisprudence interpreting the placitum. Advisors/Committee Members: Owens, Rosemary Joan (advisor), Williams, John Matthew (advisor), Law School (school).

Subjects/Keywords: Australian constitution; 51 (xxxi); acquisition of property; just terms; eminent domain; compensation; compulsory acquisition

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APA · Chicago · MLA · Vancouver · CSE | Export to Zotero / EndNote / Reference Manager

APA (6th Edition):

Stubbs, M. T. (2011). The eminent domain in Australia: the ’individual rights’ approach to s 51 (xxxi) of the Australian Constitution. (Thesis). University of Adelaide. Retrieved from http://hdl.handle.net/2440/71494

Note: this citation may be lacking information needed for this citation format:
Not specified: Masters Thesis or Doctoral Dissertation

Chicago Manual of Style (16th Edition):

Stubbs, Matthew Thomas. “The eminent domain in Australia: the ’individual rights’ approach to s 51 (xxxi) of the Australian Constitution.” 2011. Thesis, University of Adelaide. Accessed April 21, 2021. http://hdl.handle.net/2440/71494.

Note: this citation may be lacking information needed for this citation format:
Not specified: Masters Thesis or Doctoral Dissertation

MLA Handbook (7th Edition):

Stubbs, Matthew Thomas. “The eminent domain in Australia: the ’individual rights’ approach to s 51 (xxxi) of the Australian Constitution.” 2011. Web. 21 Apr 2021.

Vancouver:

Stubbs MT. The eminent domain in Australia: the ’individual rights’ approach to s 51 (xxxi) of the Australian Constitution. [Internet] [Thesis]. University of Adelaide; 2011. [cited 2021 Apr 21]. Available from: http://hdl.handle.net/2440/71494.

Note: this citation may be lacking information needed for this citation format:
Not specified: Masters Thesis or Doctoral Dissertation

Council of Science Editors:

Stubbs MT. The eminent domain in Australia: the ’individual rights’ approach to s 51 (xxxi) of the Australian Constitution. [Thesis]. University of Adelaide; 2011. Available from: http://hdl.handle.net/2440/71494

Note: this citation may be lacking information needed for this citation format:
Not specified: Masters Thesis or Doctoral Dissertation

.