Duane Ostler


Since 1983 the High Court has professed to follow a ‘gain’ approach in regulatory acquisition cases under s 51(xxxi) of the Australian Constitution. That is, government or some independent party must gain something — although not necessarily something physical — for a compensable regulatory acquisition to be found. This approach is very different from the ‘loss’ approach used by the United States Supreme Court in takings cases, in which the extent of a claimant’s loss determines whether a regulatory taking has occurred. The United States Supreme Court uses ad hoc balancing in making this determination. However, a review of Australian High Court acquisition cases reveals that the approach in both countries is little different. Whether an acquisition is found in Australia is often determined based on the extent of harm or loss to the claimant when balanced against the gain, rather than solely on any alleged gain by government or a private party. In short, a ‘gain’ (and therefore an acquisition) is often found if the loss is great enough after balancing. The cases suggest that when the loss is trivial as balanced against the gain, then usually there is no ‘gain’ found, and therefore no acquisition. In short, it would almost appear that the High Court is driven as much by losses as gains when it comes to acquisitions, in spite of its claims to the contrary.