Page:JT International SA v Commonwealth of Australia.pdf/48

Gummow J

drawn in Smith Kline & French Laboratories (Aust) Ltd v Department of Community Services and Health.

The Fifth Amendment, which also applies to the States by the medium of the Fourteenth Amendment guarantee against the deprivation of property without due process of law, is expressed in the form of a negative , appears with the due process clause, and speaks of private property being "taken" for "public use". On the other hand, s 51(xxxi) is directed to the Parliament and speaks of "acquisition" for any "purpose" in respect of which there is federal legislative power. "Acquisition" is a term which indicates, as Gibbs J put it in Trade Practices Commission v Tooth & Co Ltd, "not every compulsory divesting of property is an acquisition within s 51(xxxi)".

It should be emphasised that under the Fifth Amendment, even if just compensation be made, the "taking" must be for "public use", that is to say for "the public good, the public necessity or the public utility". In Kelo v City of New London, the Supreme Court ruled that the federal judiciary should not make an independent judgment as to whether a taking of private property is for a "public use"; rather, the question is whether the government authority, federal, State or local, can make a rational argument that the taking resulted in a "public benefit".