Page:JT International SA v Commonwealth of Australia.pdf/66

Hayne J Bell J

"acquisition" of property. It is for this reason that it has been said that s 51(xxxi) does not give protection to "the general commercial and economic position occupied by traders".

Given the centrality of the concept of "acquisition" to the operation of s 51(xxxi) and to the disposition of the present matters, it is useful to repeat some fundamental propositions about this head of power.

It is well established that s 51(xxxi) is concerned with matters of substance rather than form and that "acquisition" and "property" are to be construed liberally. It is equally well established that "acquisition" is to be understood as a "compound" conception, namely "acquisition-on-just-terms". But allowing, as one must, ample meaning to "acquisition" and "property" in s 51(xxxi), there remains a bedrock principle. There can be no acquisition of property without "the Commonwealth or another acquir[ing] an interest in property, however slight or insubstantial it may be". Giving a liberal construction to "acquisition" and "property" does not, and must not, erode the bedrock established by the text of s 51(xxxi): there must be an acquisition of property.

The arguments advanced by the tobacco companies sought to depart from this bedrock principle and to justify the departure as no more than adherence to "liberal" construction. In particular, they submitted that decisions and statements