Eminent domain

Eminent domain (US), compulsory purchase, (England and Wales) or compulsory acquisition (Australia) in common law legal systems is the power of the state to appropriate private property for its own use without the owner's consent. The term eminent domain is used primarily in the United States, where the term was derived in the mid-19th Century from a legal treatise written by the Dutch jurist Hugo Grotius in 1625. The term compulsory purchase, also originating in the mid-19th Century, is used primarily in England and Wales, and other jurisdictions that follow the principles of English law. Originally, the power of eminent domain was assumed to arise from natural law as an inherent power of the sovereign.

Australia

In Australia, s51(xxxi) of the Constitution permits the federal government to make laws with respect to "the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws". This has been construed to not necessarily mean just compensation as a just term might not of necessity be monetary or proprietary recompense. However, it is for the court to determine what is just and it may be necessary to imply a need for compensation in the interests of justice, lest the law be invalidated (Andrews v Howell (1941) 65 CLR 255).

Related Topics:
Australia - Constitution

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For the purposes of s51(xxxi), money is not property which may be compulsarily acquired; the Commonwealth must also derive some benefit from the property acquired and not merely seek to extinguish the previous owner's title (Mutual Pools and Staff Pty Ltd v Commissioner of Taxation (1992) 173 CLR 450). A statutory right to sue has been considered "property" under this section (Smith v ANL Ltd (2000) 176 ALR 449)

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