‘On Just Terms’, Revisited

Abstract

AbstractAlthough it is now generally accepted that s 51(xxxi) is a constitutional guarantee, it continues to be applied using characterisation analysis, the method of analysis used to apply grants of legislative power. This article argues that this is a mistake: if s 51(xxxi) is a constitutional guarantee, then it should be analysed like a constitutional guarantee. It takes to task the High Court's self-consciously comparative defence of characterisation analysis, which relies on the US Constitution's Fifth Amendment ‘takings clause’ as a foil. The article demonstrates that in some respects the differences between the two constitutional property clauses have been overstated, while in other r..