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Crennan J

Whether subsequent legislative prohibitions or restrictions on the use of incorporeal property created by statute will amount to an acquisition of property for the purposes of s 51(xxxi) must depend on the nature of the rights attaching to the incorporeal property, and whether, for the purposes of the Commonwealth, the prohibitions or restrictions: (a) give, or effectively give, the Commonwealth or another a right to use the incorporeal property wholly or partly to the exclusion of the owner; or (b) bestow some other identifiable benefit or advantage upon the Commonwealth or another which can be characterised as proprietary.

In The Commonwealth v Tasmania (The Tasmanian Dam Case), when explaining the difference between a "taking" (the subject matter of the Fifth Amendment to the United States Constitution) and an "acquisition", with which s 51(xxxi) is concerned, Mason J said :

"The emphasis in s 51(xxxi) is not on a 'taking' of private property but on the acquisition of property for purposes of the Commonwealth. To bring the constitutional provision into play it is not enough that [the] legislation adversely affects or terminates a pre-existing right that an owner enjoys in relation to his property; there must be an acquisition whereby the Commonwealth or another acquires an interest in property, however slight or insubstantial it may be." (original emphasis)

The enduring authority of this statement of principle has been confirmed by this Court on numerous occasions, most recently in Wurridjal v The