Article on The Protection of Property Under the Australian Constitution

Lael K. Weis recently published an Article entitled, The Protection of Property Under the Australian Constitution, Property, Land Use & Real Estate Law eJournal (2018). Provided below is an abstract of the Article:

This chapter provides an overview of the High Court Australia’s constitutional property rights jurisprudence. It examines how the unique formulation of the Australian Constitution’s property clause, s 51(xxxi), has figured in the High Court’s approach to determining the scope of constitutional protection afforded to property rights. In particular, the chapter suggests that there are unresolved tensions between the status of s 51(xxxi) as a legislative power-conferring provision and its status as a constitutional guarantee. These tensions are most evident in the High Court’s regulatory expropriations jurisprudence. Despite the High Court’s insistence that s 51(xxxi) is best understood as a constitutional guarantee and not a supplementary grant of legislative power, the High Court has tackled this key interpretive question by using the same approach used to determine whether a law falls within a grant of legislative power. The chapter ultimately suggests that these tensions ultimately betray a deeper ambivalence about the place of rights in Australian constitutionalism.