Opinion Number. 1532


Acquisition of property acquisition by Commonwealth of additional shares in Amalgamated Wireless (Australasia) Limited: compulsory acquisition: acquisition on just terms: corporations power

Key Legislation

Constitution ss 51(xx), (xxxi)

The Postmaster-General

I am in receipt of your letter of 21st March relative to the question of the acquisition by the Commonwealth of additional shares in Amalgamated Wireless (Australasia) Limited.

In reply, I desire to say that clause 21 of the Agreement, set out in your letter, does not empower the Commonwealth to acquire the shares in question. It merely preserves any right which the Commonwealth may otherwise have to acquire the shares.

Under the Constitution the Commonwealth may acquire by agreement any property which it requires for any public purpose.

It may also legislate under section 51(xxxi) of the Constitution for the compulsory acquisition of property for any such purpose. A condition of the exercise of this power is, however, that the property must be acquired on just terms. It would, therefore, not be possible for the Commonwealth to determine, without the consent of the Company, the amount of compensation payable upon the acquisition of the shares.

The only other head of constitutional power which calls for consideration in this case is that of trading and financial corporations formed within the limits of the Commonwealth. This power would not, however, empower the Commonwealth to legislate for the acquisition of the shares otherwise than on just terms.

[Vol. 26, p. 182]