On solatium: towards a rethinking of compensation

Abstract

ABSTRACT Sovereign governments generally benefit from the capacity to commute private property rights to public ownership in order to undertake projects for the public benefit. When private property rights are compulsorily acquired by Australian governments, the criteria for the assessment of compensation accruing to the dispossessed landowner ordinarily requires consideration of a raft of heads of possible compensation. The primary aim of this paper is to canvass how those elements of traditional concepts of solatium as one of the heads of compensation ought now be viewed in the light of the defining High Court decision in Northern Territory v Griffiths [2019] HCA 7. However, a secondary aim (of the authors) is also to give consideration as to how the notion of solatium now fits in the broader Constitutional framework of the heads of compensation for private property rights compulsorily acquired. NSW legislation is used in this paper as a general exemplar of the Australian legal milieu regarding compulsory acquisition law and practice.