The Death of Property Rights

The Death of Property Rights, by Alan Moran.

Using sophistry, courts seek loopholes through which law is stripped of tradition and its fundamental purpose in protecting the individual’s liberty to use as he sees fit that which he owns. Now, the prevailing and abhorrent philosophy rationalises seizures in the name of ‘public needs’. …

[F]armers’ rights have simply been stolen through regulations that make the land unproductive.

Alan and I gave evidence in this court case:

One landowner who took a stance against this was Peter Spencer.  The Federal Court of Australia in July of last year decided against his claim that the value of his property had been taken by the NSW government and the Commonwealth acting in concert.

Peter Spencer

Basically government said he couldn’t clear his land, in order that Australia meet its carbon emission commitments under the Kyoto Protocol.

The judge found that the New South Wales government had in fact “sterilised” or “taken” Mr Spencer’s land. …

In 2007, the NSW government offered to buy Mr Spencer’s land for $2.17 million, which it said was fair value, given that its regulatory measures had all but eliminated the land’s productive capacity.  A valuation Mr Spencer had had prepared put its worth at $9 million in the absence of the regulatory restraints on its use. …

Although the judge accepted that the regulatory measures of the NSW Government amounted to a taking of the property, she merely shrugged her shoulders with regard to this, accepting, as others in the judiciary had previously done, that land theft by state governments was a fact of life.  The most generous interpretation of her decision was contained in one of her statements, “there may have been a “taking” but there was no acquisition” because although the state had rendered the land all but valueless it did not actually take it off the owner!

A judge on a huge salary from the government employed sophistry to legitimize the actions of government in commandeering Mr Spencer’s property. She used more sophistry to allow the Commonwealth to weasel out of its constitutional obligations to Mr Spencer — the Commonwealth got all the states to simultaneously pass the required legislation, so it wasn’t the Commonwealth that dun it. Oh what a sophisticated theft — the highlight of creativity of our current elite.

In comparison to state actions, land theft by the Commonwealth is, or was, more difficult to excuse because of section 51(xxxi) of the Constitution.  Made famous by the film The Castle, this formally requires the Commonwealth to provide fair compensation if it takes property. …

[T]hen-Premier Bob Carr on the ABC – Lateline with Phillip Adams and in Federal Parliament delivering his maiden speech was pleased to admit he and Premier Beattie had stopped Land clearing in NSW and Queensland and by doing so had enabled Prime Minister Howard to meet his Kyoto targets. …

In spite of this evidence and more, the Judge managed to find that an informal arrangement between the states and the Commonwealth was not proven.

Mr Spencer is a hero, but the media and government don’t want you to know.

Mr Spencer’s case is unusual only because he has chosen to make a fuss about the theft of his land.  Barnaby Joyce has suggested that the expropriation of farmers for the carbon sequestration alone had cost them $200 billion. This figure (which was not contested in the Parliament) was apparently arrived at by comparing land values where regulation prevented productive use, to values of land that was unaffected.

That $200 billion is an estimate of how much the Commonwealth took in property rights from farmers in order to meet its Kyoto commitments. Serious business indeed. These farmers bore the brunt of Australia’s effort to meet its Kyoto commitments — with no recognition, just economic loss and derision in the media if they complain. Brilliant.

This is the nadir of legal decision making. The courts have stood by while state governments have robbed particular citizens to achieve the environmental benefits they claim the people as a whole want.

This goes back to the Magna Carta:

From medieval times, common law and commercial law developed on the basis of judgements grafting common sense to principles of fairness in dealing with property. …

In England, united under a single jurisdiction, the common law developed whereby judges agreed to follow each other’s decisions to ensure consistency.  And as Jim Spigelman reminds us, Magna Carta, which had many precursors and was reaffirmed over 50 times in the years following 1215, was essentially about preventing the king taking property.

Going backwards under the “progressives”:

Whatever the underlying cause, we are seeing a judiciary that has ceased to be the impartial protector of property rights that was its original contribution to nurturing prosperity. Using sophistry, courts seek out loopholes through which law becomes interpreted not in ways that maintain its tradition of defending property rights against the government but which provide a rationalisation for the seizure of private property to meet public needs. Justice and liberty aside this has deep seated implications for the efficient operation of economies. Individuals’ uncertainties over the rights to enjoy and prosper from ownership of property will mean a weakening of the wealth creation process.

Weaken property rights too far and productivity stalls — and Venezuela beckons, because who is going to strive or work hard if “the people” just take their stuff?