Page:JT International SA v Commonwealth of Australia.pdf/76

Heydon J

Deane J's reasoning in the Tasmanian Dam Case does not stand alone. Parts of it have been quoted with approval. Parts of it have been referred to with approval. And parts of it have also been approved without specific acknowledgment. Thus in Smith v ANL Ltd, Callinan J referred to Mason J's statement in the Tasmanian Dam Case that s 51(xxxi) depends on "an acquisition whereby the Commonwealth or another acquires an interest in property, however slight or insubstantial it may be." Callinan J described this as "the narrow view". Mason J had quoted and adopted a passage from Dixon J's reasoning in Bank of NSW v The Commonwealth. Callinan J said :

"I do not myself discern in that passage from the judgment of Dixon J any express, or indeed implied, support for the narrow view which Mason J took of the provision in the Tasmanian Dam Case, or, for the attachment of any great significance to any distinction between a taking or an acquisition, whether perceived or actual."

His Honour also said :

"in my respectful opinion, in the Tasmanian Dam Case, it is easy to see that the Commonwealth really did acquire something, and that was a thing