Land theft by governments: the judiciary’s mythical defence of Darryl Kerrigan’s Castle

I had a piece in the Herald Sun on Friday (pay walled) that addressed the property theft governments perpetrate to pursue their goals.

In the case of NSW farmer Peter Spencer, the NSW government progressively rezoned his land until it was worth a fifth of its previous value then offered to buy it at the reduced value.

The land theft was conducted, at least in part, so that the Commonwealth could meet its Kyoto commitments on greenhouse gas emissions.  Cynically speaking, the government recognised it is much less likely to incur voter wrath if it pays for things by taking the funds only from a small number of people.

Without shame, courts condone land theft when it is state governments that perpetrate it (on grounds that there is no specific provisions in state constitutions stopping governments doing so). Thus in the Peter Spencer case, the court found that the land value had been taken by the NSW government without compensation but that was all ok. In a variation of the theme, ‘If rape is inevitable ……’ the judge, recognising that Mr Spencer had been ruined, suggested that he should have taken the compensation that was offered him.

But the judiciary also finds opportunities to sidestep the provisions in the Australian Constitution that have been interpreted as requiring compensation for a taking, a la The Castle’s Darryl Kerrigan. Thus, with regard to the connection between the taking and the Commonwealth’s benefit, the Federal Court, employed sophistry to avoid compensating for the theft, claiming that value had been “extinguished” rather than “taken”.  And the judge blindly avoided recognising a connection between the NSW government’s actions and commonwealth pressure.

This was notwithstanding Premiers Beattie and Carr proudly proclaiming how their actions in preventing land clearances had enabled the meeting of the Kyoto commitments. Moreover, when Dr David Kemp was the Environment Minister, Canberra withheld money until the NSW had become more aggressive in stopping the land clearing that was essential if the Kyoto commitments were to be met.

Dr Kemp acknowledged communicated this to the NSW Government. He said there was no intention to acquire property – at least that of Spencer – on other than just terms. There is however no record of him seeking such compensation provisions in the course of pressuring the NSW to take regulatory action to prevent clearing.

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 arrived at by comparing land values where regulation prevented productive use, to values of land that was unaffected.

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. “Merchant law” was enforced by embargos on jurisdictions that got bad reputations for dishonesty. In England, Magna Carta and its many pre-cursers and reaffirmations was essentially about preventing the king taking property. And “just terms” became the Fifth Amendment of the American Constitution in 1790 once the former colonials realised that the absence of a king did not mean the absence of potential sovereign seizure.

We are seeing a judiciary that has ceased to be the impartial protector of property rights that was its original contribution to nurturing prosperity. 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.

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28 Responses to Land theft by governments: the judiciary’s mythical defence of Darryl Kerrigan’s Castle

  1. Old School Conservative

    I don’t pretend to understand the complexities of this case, but I am feeling more and more angry at the “elite” of Australia riding roughshod over everyday Australians.
    Governments who ignore property rights will end up in dire straits.

  2. struth

    It all comes down to “interpreting” the constitution.
    The constitution is there to limit the power of government.
    The three tiers of government in Australia are the executive, the parliament and the judiciary.
    How this is all falling apart is that the judiciary (part of the government) claim the bloody thing needs interpreting……… and by them!
    Strangely, they have an inability to read plain English.

  3. blogstrop

    We are seeing a judiciary that has ceased to be the impartial protector of property rights that was its original contribution to nurturing prosperity.

    Feral to the core.

  4. HRT

    All stand for the rule of law.

  5. Anne

    The erosion of Property Rights is part of the United Nations’ One World Government plan for Global sustainability in the 21st Century. Agenda 21.

    ICLEI, the ‘International Council for Local Environmental Initiatives,’ was founded in 1990. It is the result of the meeting of 43 countries at the United Nations ‘Earth Summit’ in New York.

    Here, Alexandra Swann explains how Central Planners ‘sustainably’ erode property rights and reclaim land and resources for the US Government.

    This is frightening.

    https://www.youtube.com/embed/TDDWY7veVjc

    The same policies are at work here in Australia.

    Here’s a list of Municipalities who subscribe to the ICLEI Initiative. Is your Local Council on this list? Mine is.

    http://procinctu.info/iclei-list-members-agenda-21-implementation/

  6. Anne

    One World Order under Communism that is.

    Climate Change’ is Ruse for Agenda 21.

    [UN Climate Commissioner Christiana]
    “Figueres is on record saying democracy is a poor political system for fighting global warming. Communist China, she says, is the best model,” “

    http://www.bb4sp.com/top-aussie-official-%E2%9E%A0-global-warming-a-un-led-ruse-to-create-new-world-order/

  7. .

    My argument why what happened to Peter Spencer was wrong:

    The High Court has said that property extends to rights and uses of the land {Justice Starke said the term includes: “every species of valuable right and interest including real and personal property, incorporeal hereditaments such as rents and services, rights-of-way, rights of profit or use in land of another, and choses in action. Justice McTiernan confirmed the term property extends to tangible and intangible property}.*

    A prohibition which has a benefit accruing to the Commonwealth is an acquisition.** An acquisition by the States for the Commonwealth***, by agreement or not****, is treated as an acquisition made by the Commonwealth and must be made on just terms, “as a protection from a serious gap in our constitutional safeguards”.*****

    * Minister of State for the Army v Dalziel (1944)
    ** Commonwealth v Tasmania (Tasmanian Dam Case) (1983) 158 CLR 1
    *** PJ Magennis Pty Ltd v Commonwealth (1949) 80 CLR 382
    **** Jenkins v Commonwealth (1947) 74 CLR 400 at 406 per Williams J.
    *****Trade Practices Commission v Tooth adn Co. Ltd (1979) 142 CLR 397 at 452 per Aickin J.

  8. davefromweewaa

    Alan,
    This loss of property rights you write of seems to me to include the loss of some property rights that you approve of. To wit the rights of landowners to energy resources under their land. Rights which were only lost as recently as Neville Wrans time.
    Please explain?

  9. Richard H

    Your anger is entirely justified – but entirely misdirected.

    Yes, the courts often let us all down, but on this occasion the court got it right. Spencer lost his property – but the Commonwealth didn’t acquire any property; it was simply destroyed (in the name of mighty Gaia, all glory unto her). Hence no compensation for acquisition of property by the Commonwealth.

    As for Magna Carta, it says (relevantly) that no-one can have his property taken from him except “by the law of the land”. The parliaments made the “law of the land” that lost Spencer his property – so direct your outrage at them (and in particular at the pollies that pushed for the relevant enactments) – that’s where the responsibility for this lies.

  10. cohenite

    The concept of the Legal Fiction is alive and well in Spencer’s Judgment; extinguishment is not confiscation. Of course not, the land is still there isn’t it?

  11. mundi

    The land is there, but it’s not his land. He merely holds a wireless title land that must remain in its natural state and not be touched.

  12. Iren

    The NSW government is planning another attack on property rights through changes to Strata Titles legislation to enable 75% of a body corporate to agree to sell the whole block. The effect of this is that up to 25% of unit owners in that block will be forced out of their home or investment with recourse. You put everything you have into purchasing your own home and then lose it for the enrichment of others.

    And NSW supposedly has a conservative government! Ha, Ha.

  13. Rabz

    Property rights have been under unrelenting assault in this toilet of a country for about the last fifty years.

    Pretty soon we’ll all be ‘living’ in high rise cement boxes and either toiling in tractor factories or harvesting dead rats.

    Most of the idiots around us will be happy with this.

    And they’ll bloody well deserve it.

  14. .

    All of the sophistry in Richard’s post is blown away by mine which immediately precedes it and refers to legal authority of the High Court.

  15. wreckage

    I will never vote Coalition again.

    Never.

  16. wreckage

    The government acquired usage rights. Its usage was to grow forest etc. It still acquired 100% of usage rights and used them. The property was not given to Gaia, and even if it was, religious sacrifice is still usage.

  17. Alan moran

    Davefromweewaa
    Mineral rights were taken by state in a gradual process over five centuries. They were taken on the basis of finders keepers so that entrepreneurs with skills could search freely and a share of the find went to the state.

    Probably more efficient than allowing a share to a passive land owner. In any event the taking was a long time ago and took something (nothing in the vast majority of cases) that was not recognised as valuable and needed the application of outside skills to discover it.

    Of course govt gradually has taken excessive share and landowners have found political clout and green anarchist allies to deny any wealth creation if they don’t get a big share.

  18. Davefromweewaa

    Allan,
    I’m not sure what you mean about getting a big share. I was under the impression that the only thing the landowner can hope for is compensation for harm and damage, is that not the case? I’ve not heard of landowners getting a big share.
    Of course if we had Jed Clampett, Beverly Hillbilly style freehold there would be a big share. AFAIK in the USA the landowner owns the resource and can develop it themselves or do a joint venture with a driller or miner. One arrangement that I’ve heard of is like a sharefarming agreement with 5/8 to the farmer 3/8 the driller. I’m sure there’d be much less resistance to development and no alliance between greens and farmers if we had that here.

  19. wazsah

    Gidday Alan – you wrote –
    [In the case of NSW farmer Peter Spencer, the NSW government progressively rezoned his land until it was worth a fifth of its previous value then offered to buy it at the reduced value.]
    Yet conversely –
    Post the ICAC coal EL scandals – the NSW Govt has been steadily shifting the goalposts re mineral exploration conditions against explorers – for example making explorers pay landowners legal costs re access – which will de facto sterilise some land from mineral exploration. So the Govt who is the custodian of the mineral rights owned by the people of NSW – is in fact impairing and reducing the value of those yet to be discovered and defined mineral assets. While at the same time the future value of some mineral discoveries is being in effect transferred to landowners – whose titles specifically exclude minerals.
    From the point of view of the mineral exploration sector – I think the pre 2011 Govts were better.

  20. Alex Davidson

    Cases similar to Peter Spencer’s are occurring all over NSW. Titleholders no longer own their property in any meaningful sense of the word. Through zoning and planning ‘law’, the government has reduced them to little more than caretakers, compelled to follow government-set management plans.

    Undeveloped land is no longer scrub, it’s ‘environmentally sensitive land’, and must be treated with hallowed respect. Owners are forced to run along cap-in-hand to elites, armed with expensive but worthless nature studies, and beg for ‘consent’ from non-owners before they can put their land to a more productive use. Then if permission is granted, it will be accompanied by all sorts of extortionate demands, such as a requirement to set aside over half the site as a managed nature reserve, quarantined from future development ‘in perpetuity’.

    Politicians love this situation because of the incentive it creates for donations. Bureaucrats love it because of the unending opportunities it creates for empire building and securing their own jobs. And the entire Left of society loves it because they have never understood the relationship between prosperity, freedom and property rights.

    Democracy isn’t the answer. We must return to a society based upon respect for property rights, where it isn’t okay for the free lunch brigade to use the force of government to help themselves to wealth created by others.

  21. Ellen of Tasmania

    Cases similar to Peter Spencer’s are occurring all over NSW. Titleholders no longer own their property in any meaningful sense of the word. Through zoning and planning ‘law’, the government has reduced them to little more than caretakers, compelled to follow government-set management plans

    You have to get permission just to cut down a tree. In one council I know, you have to pay according to the size of the tree as ‘carbon offsets’ even if they do let you cut it down.

    Let’s face it. We don’t have private property rights anymore. There’s a lot of ‘guilty until you can prove you’re innocent’ laws coming into play, too. And you’d better not hold any traditional moral values – now termed ‘traditionalist‘ because then you are obviously sexist, racist, homophobic, misogynist, denier et al.

    But you can have sex with whoever you want.

  22. John

    Alex, It is not just NSW, governments at every level are removing property rights at every level and I’m appalled and discusted. the value of these rights are transferred to the general community or the government for zero compensation, A quote in a letter I have from government was mt rude awakening to this theft, it reads, “there is no provision for compensation for the removal of common law roperty rights”
    However the general population seems quite content with this process while it does not effect them. When as Rabz says we are harvesting rats, maybe they will wake up and stop voting for the Lib/Lab/Green/Nat parties that formulate and enforce this commune approach that will destroy free enterprise in Australia!!

  23. Dr Faustus

    Cynically speaking, the government recognised it is much less likely to incur voter wrath if it pays for things by taking the funds only from a small number of people.

    This has become the preferred modus operandi of all governments.

    As a nation we have developed expensive, unfunded enthusiasms; principally, satisficing Gaia and providing ‘whole of life’ welfare as a substitute for productivity. Our politicians and their enablers know they have to continue to deliver these wonders at no apparent cost to the people who, in return, keep them in business class comfort.

    At least Labor no longer makes any pretence about it.

  24. James Giblon

    Did the Howard government do a single good thing from a conservative standpoint?

    I can’t thing of one.

  25. Rob MW

    “Mineral rights were taken by state in a gradual process over five centuries.”

    The latest being in 1981 in NSW when Wran took all the landowners Coal rights under the Coal Acquisition Act 1981. When the ‘just terms’ provision was challenged the HCA found that the ‘States’ didn’t have to pay because their ‘Constitutions’ were ‘in continuance’ (s106 & s107) in the adoption of the Commonwealth Constitution and the then ‘Colonies’ constitutions made no provision for just terms compensation in 1901.

  26. iain saunders

    This is happening to me right now in nsw the process started in 2000 I now have what is more or less a 2000ac privately owned nature reserve.two restrictive covenants on the titles based on a fraudulent report by the lands dept no compensation .no one in government especially the local member replies to my emails or phone calls.no income from my property.business shut down.marriage gone.even the local council is in on it.they no longer maintain the road.devalue , divide, demoralise then conquer .I live in the same shire as peter spencer .coincidence I think not.

  27. “You ain’t seen nuthin’ yet!? If you wanrt to REALLY find out just how evil, abhorrent, rotten and extortionate the NSW Govt. really is go to http://www.llsclassaction.com. The NSW Dept Primary Industries, under the stewardship of both the LNP and Labo(U)r Govts. has for eons and eons AND EONS!!!!!! demanded money with menaces from Landholders on hectarages of 10ha+ for mythical, guessed numbers of livestock ESTIMATED BY A GOVT. OFFICIAL to be able to be sustained on a landholding in one year. They do this through a “subsidiary” of Primary Industries currently called Local Land Services (LLS). To confuse the issue under the guise of making this “subsidiary” efficient (Ha Haa Haaa) the Govt. of the day changes its name every few years at a cost to taxpayers around $250k. Horror stories abound. Go to the website to see what mongrels the NSW Govts of both colours (YES DROPKICK PROGRAM _ it IS spelt “oUs”) have been over the last 130 +/- years. AND DO SOMETHING TO STOP THESE CREEPS!!!!!

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