The Changing Paradigm of Property and the Framing of Regulation as a 'Taking'

The past two decades have seen a concerted attempt by landowner groups to shift the paradigm of property rights from a ‘discrete asset’ to a ‘bundle of rights’, and to characterise many restrictions on use rights as a taking of property. Evidence from two recent Commonwealth inquiries into land clearing laws indicates that the reframing of property rights may be affecting the willingness of landowners to tolerate regulatory restrictions on their land use. The arguments advanced by the property rights groups draw on contested concepts from American jurisprudence and scholarship on the ‘Takings Clause’ in the Fifth Amendment to the US Constitution. The arguments are beginning to present themselves in cases arising under section 51(xxxi) of the Australian Constitution.