Courts refuse to protect Australian private property rights

Courts refuse to protect Australian private property rights, by Alan Moran.

Last week, the Federal Court confirmed that property rights in Australia are held at the whim of governments. The Court was hearing an appeal in the Peter Spencer case. …

In a nutshell, Peter Spencer was a NSW farmer whose land was devalued from a worth of $9 million to $2 million by the regulatory actions of the NSW government which progressively reduced what he might do on the land. In the end, the NSW government offered to buy his land for the $2 million – its devalued worth stemming from its regulatory actions – but Mr Spencer rejected this. The government’s actions were unquestionably “takings” of Mr Spencer’s property rights. But, according to the original judgement, he was due no compensation and the offer by the NSW government was therefore generous! …

Peter Spencer

Mr Spencer’s strategy was to seek compensation from the Commonwealth on the grounds that the actions by the NSW Government were taken at the behest of the Commonwealth, which sought to prevent land clearing in order to suppress the emissions of greenhouse gases. This allowed Australia to meet the terms of the 1997 Kyoto Protocol (which was ratified with Kevin Rudd in 2007 but which the Coalition Government had signed and were seeking to meet).

Under the Kyoto Protocol Australia agreed to limit its emissions of greenhouse gas to an eight per cent increase by 2012. Land clearing restrictions reduced Australian emissions by 110 million tonnes of carbon dioxide equivalent (about a fifth of total emissions), without which Australian emissions in 2012 would have seen a 21 per cent increase. …

In seeking to use the Commonwealth Constitution as a route to “just terms” compensation, Mr Spencer presented evidence showing that Premiers Beattie and Carr had proudly proclaiming how their actions in preventing land clearances had enabled the meeting of the Kyoto commitments. He also maintained that Dr David Kemp, as the Commonwealth Environment Minister, withheld money from NSW until it became more aggressive in stopping the land clearing that was essential if the Kyoto commitments were to be met. Dr Kemp acknowledged he had communicated such matters to the NSW Government.

The original federal court decision which was upheld by the appeals court was that the takings by the NSW government were not related to the Commonwealth’s wishes and the judge noted that such (uncompensated) takings had been underway since at least 1972.

While the case is not major of itself, it applies widely across Australia and Barnaby Joyce 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 arrived at by comparing land values where regulation prevented productive use, to values of land that was unaffected.

So there we have it. Although benefitting in accolades from the domestic and international community for meeting its Kyoto commitments, the Commonwealth was found not to have been sufficiently collusive with the property seizures of a state government for it to be held liable for compensation.

Rule of law? When it suits…

Nobody, until the onset of socialist parties, would have envisaged that democratic constitutions would have allowed the governments themselves to have been the instigators of property theft. Now the highest courts of law justify it.

I gave evidence of a technical nature in the original court case. Peter is a good bloke and very genuine. He was ripped off in the name of climate change by a bureaucratic elite. Peter feels he was fighting for everyone’s property rights, not just for his compensation — and given the precedent this case sets, he is correct.

Ever seen the movie “The Castle”? This actually was it. I saw Peter in the Supreme Court of NSW, trying to run his own case. A little poorly dressed because he has no resources any more, with little knowledge of the law, he was battling it out with supercilious, experienced, well-paid barristers hired by a government with no expense limit. The judge patronizingly intervened a few times on points of law to assist Peter, to stop it becoming a complete mockery of justice. The judge was an obviously PC Lady Bountiful, who knew in advance the decision was never going to be to uphold property rights and put the Australian government on the hook for $200 billion to Australian farmers. Unlike the movie, the big guys won — the system was just going through the motions.

Where, you might ask, are the Australian farming organizations supporting Peter? Ahhh, they did initially. But they rely on government support and cooperation in all sorts of ways, and governments at all levels made it very clear that supporting Peter in any way would be unwise. So they withdrew their funding and Peter ran his court case himself with a only a little pro bono help.

Hear about any of this in “the news”? Didn’t think so. The only time Peter got attention from the media was when he went on a hunger strike for 50 days

See also here.

Commenter C.L.:

An extraordinary story of larceny which points (again) to what a third rate, Mickey Mouse constitution we have. Our judicial class simply invents ‘law’ and those inventions invariably favour left-wing, socialist causes while disempowering or robbing private individuals. It’s no surprise that two of the worst tax-eating tumors in Australian political history, Beattie and Carr, figure prominently. But the LNP has done nothing whatsoever to stop this occurring. This is what Turnbull and company should be talking about, not Bananaby Joyce’s sex life.

Commenter Alex Davidson:

What has happened to Peter Spencer and others is a very sad state of affairs and something I would never have believed could happen in Australia if you had asked me 30 years ago. Unfortunately though the cancer of socialism has spread far and wide, and with it the attack on property rights. Many of us now have our own Peter Spencer stories to tell, particularly at the hands of local councils, but also at the hands of government in general.

The question in my mind is what, if anything, will turn things around? I can’t see how any democratic solution will work, given the way that the sanctity of property has been undermined, and the large number who now benefit from the plunder.