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An Unholy Alliance – Combined Federal/State Impacts on Property Rights in Australia

Sydney Law School Research Paper No. 10/130

Presented at International Property Law Conference, Pretoria, October 28-29, 2010

31 Pages Posted: 26 Nov 2010  

Patricia Lane

The University of Sydney Law School

Date Written: November 23, 2010

Abstract

The Australian Constitution contains a guarantee that Federal laws for acquisition of property must provide for compensation on ‘just terms’. The Constitutions of the Australian States contain no such guarantee of ‘just terms’ compensation for State government acquisition of property. State Governments, however, are the polities with the primary responsibility for land regulation, including land titles, land management, and regulation of the exploitation of land-based resources. The Federal Government has to deal with cross-state environmental and land management issues, such as water allocations, land salinity, and protection of threatened and protected species, and to deal with the challenges of climate change, in a way that recognises and respects the separation of powers between the Federal and State governments. To what extent can the Federal government act in concert with the States to terminate resource exploitation rights, or ordinary land-use rights, in a way that does not require compensation on just terms for the holder of those rights be compensated on just terms? This paper examines the extent of State and Commonwealth obligations to compensate persons whose property rights in land or resources are curtailed or sterilised by regulatory mechanisms directed to resource security or environmental protection, in the light of recent High Court decisions on the acquisition power.

Keywords: property, constitutional protection, acquisition, water right, natural resources, state regulation of property

JEL Classification: K10, K11, K30, K32

Suggested Citation

Lane, Patricia, An Unholy Alliance – Combined Federal/State Impacts on Property Rights in Australia (November 23, 2010). Sydney Law School Research Paper No. 10/130; Presented at International Property Law Conference, Pretoria, October 28-29, 2010. Available at SSRN: https://ssrn.com/abstract=1714076

Patricia Lane (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia
+61 2 9335 3088 (Phone)

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