Courts refuse to protect Australian private property rights

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.

This is an issue I covered on several previous occasions, for example here, here, here and here.

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!

The whole case has far reaching ramifications.  Many of those 19th Century jurists discussing the establishment of the Australian Constitution were of the view that property rights were so enshrined in the common law that no explicit provisions, akin to the US Bill of Rights, were necessary to attest to this.  Provisions against uncompensated takings of property are not in state law but the Commonwealth constitution had Article 51 (XXIII) saying the Commonwealth could not take property without offering “just terms” to its owners.

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.

Some other governments (notably Japan and Canada) failed to meet their own commitments and gained some international opprobrium as a result.  The Canadian government had been urged to follow the Australian example of preventing land clearing to meet its obligations but determined that such measures would be unconscionable.

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.

But the wider issue is the apparent untrammelled right of state governments to seize private property through regulatory measures without compensation.  A fundamental role of the government to protect private property rights has been seen since John Locke as  crucial to modern civilisation.

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.

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56 Responses to Courts refuse to protect Australian private property rights

  1. Singleton Engineer

    Why was the Australian Constitution the key legislation?

    NSW’s Land Acquisition (Just Terms Compensation) Act 1991 No 22 would appear to me, a complete layman, to be relevant.

    Definition: acquisition of land means an acquisition of land or of any interest in land.

  2. stackja

    Time for referendum. But will any politico an have the guts?

  3. Ellen of Tasmania

    “Hidden in the heart of this striving for Liberty there was also a deep hatred of personal freedom.

    That invaluable man Rousseau first revealed it. In his perfect democracy, only the state religion is permitted, slavery is restored, and the individual is told that he has really willed (though he didn’t know it) whatever the Government tells him to do.

    From that starting point, via Hegel (another indispensable propagandist on our side), we easily contrived both the Nazi and the Communist state.

    Even in England we were pretty successful. I heard the other day that in that country a man could not, without a permit, cut down his own tree with his own axe, make it into planks with his own saw, and use the planks to build a toolshed in his own garden.

    (C S Lewis, ‘Screwtape Proposes A Toast‘)

    https://theawakenedzombie.wordpress.com/2014/06/02/screwtape-proposes-a-toast-by-c-s-lewis/

  4. 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.

  5. Bruce in WA

    Ask any licensed firearms owner post-1996 about private property rights and “just compensation”. The Federal government under Howard, with no jurisdiction in the area of state gun laws, literally blackmailed the states into compliance by withholding, inter alia, federal road funding.

    Now, at least here in Perth, local councils are stepping into the fray. In one in particular, if you want to chop down your own tree on your own land, no matter the species, go ahead—but you will be charged a “levy” for doing so if the council so deems. And a new entry is added to the Macquarie: levy: noun, synonym for fine.

  6. John Constantine

    The deindustrialisation of agriculture is only starting.

    Whatever the excuse, the country is hellbent on betting the farm on debt funded government services jobs catering to the population Ponzi scheme.

    The decolonisation conventions we are unswervingly committed to do not allow racist Anglosphere settlers to remain as free living folk farming on stolen land.

    Zimbostralia, Comrades.

  7. Bob of Brisbane.

    The Commonwealth Government, and recently in particular Mr Turnbull, has been quite unresponsive to requests for at least a referendum on Australia’s adoption of Agenda 21 (now Agenda 2030) which was adopted by the Keating Government in 1992 without public discussion or parliamentary approval and ratified by Mr Turnbull in 2015. Subsequent Australian Governments have all continued to acquiesce to it. Sadly the National Party, a party we would have assumed would defend conservative principles, has been running dead in the past few years and has not adequately addressed this threat. We are in the grip of a Marxist culture that will eventually lead us to a centralist One World Government.

  8. RobK

    It is sad news that Peter Spencer lost his appeal. He and I are just a few of the many who have lost much of what we thought we had. Whilst the issue is fairly complex, I think the main problem is that of the individual State constitutions (which vary from state to state) as they predate the Fed one and are relics of colonialism but the passage of time has produced legislature that all but completely plasters over common law. There is a major problem here the way i see it. It isnt going to go away.

  9. John Constantine

    Our signed capitulation conventions to the transnational decolonisation cartels mean that obsolete Australia cannot cling to its stolen outpost.

    You cannot steal a country and claim to have property rights to it.

    This is the foundation of leftist demands Australia economically genocide itself.

    Why not sign up to decolonisation, they have lovely parties, and they all giggle that it is just such a brilliant idea Julie Bishop.

  10. Gavin R Putland

    stackja @ #2640653 wrote (as amended):

    Time for referendum. But will any politician have the guts?

    The 4th referendum question of 1988 would, inter alia, have imposed the “just terms” requirement on the States. The Tories campaigned against it. Hence, like all referendum questions that didn’t have bipartisan support, it was defeated.

    But I’ve said before, and say again, that Mr Spencer should challenge the stamp duty on new vehicles under s.90. There are certain constitutional questions that the States cannot afford to litigate. By threatening to litigate them, you can enforce your rights.

    I’ve also said before, and say again, that because the overall long-term trend in land values is upward, governments can easily fund compensation for devaluation of land (howsoever caused) by imposing a modest tax on all realized uplifts in land values (howsoever caused). But I’m pretty sure that such a tax would be denounced as an egregious attack on property rights, even if the revenue were earmarked for protection of property rights. The consequence of that myopic mindset is that property rights go unprotected.

  11. RobK

    The states tend to cede power to the commonwealth but they make certain to maintain power over individuals in a manner the commonwealth cannot. The individuals’ property rights are caught by the lowest common denominator of the poorly overlapping constitutions.

  12. Ellen of Tasmania

    In one in particular, if you want to chop down your own tree on your own land, no matter the species, go ahead—but you will be charged a “levy” for doing so if the council so deems

    Bruce, this happened to friends of ours. It wasn’t called a ‘levy’ by their council, but rather a ‘carbon tax’ and based on the size of the trees, they had to fork up $7,000.

    The only thing that is totally yours on your property is the mortgage.

  13. struth

    Now, at least here in Perth, local councils are stepping into the fray. In one in particular, if you want to chop down your own tree on your own land, no matter the species, go ahead—but you will be charged a “levy” for doing so if the council so deems. And a new entry is added to the Macquarie: levy: noun, synonym for fine.

    The fine will be huge and the only reason they now don’t ban it totally is there is no money in it and trees have this unfortunate habit of dying and falling over on things (and people).
    No responsibility, but still grabbing the moolah.
    The best way to get rid of a tree is to secretly poison it, watch it die and have you insurances well and truly up to date and complain to the council that if it isn’t removed by them, you will sue them if something happens.
    It’s obviously their tree.

  14. Helen

    It also happens with the Valuer General on agricultural land. By not allowing for the full or replacement value of an asset, he is in fact transferring part of the value of that asset to the Crown.

  15. rickw

    Australian Politicians never hesitate to screw the Average Man.

    This is going to be one heck of a revolution, it WILL be brutal!

  16. jupes

    All this bullshit and theft in order to ‘save the planet’ from the evil CO2.

    What have we become, ditching fundamental principles for this utter fucking lunacy?

  17. marcus classis

    Not good at all. People will get so angered as to apply Rule .303.

  18. 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.

  19. Louis

    Well that’s okay because if his property was subject to land tax or council rates, the valuer general would have given it a value of $9 million.

    Heads you loose, tales they win, is the new attitude in government and the courts are going along with it…unless you are a genuine threat to society and then they become your biggest defender.

  20. Dr Fred Lenin

    ‘Bring in rule by referenda with laws written in plain unambiguous English , there will be little need for the lawtrade. Criminal trial by peoples Tribunals , an extension of the jury system ,with a police prosecutor ,and court professionals to advise tribunal members . Make conveyencing a lands department function and wills registered by courts ,then we can close the law faculties that cost squillions of taxpayers money .
    Just a thought bubble ,but has some merit.

  21. Elizabeth (Lizzie) Beare

    Talk to anyone who has had a row of trees planted by a Council in front of their harbour view or who is not permitted to maintain their own trees to preserve views. If you could take legal action against the resultant loss of value due to green nonsense then millions of claims would be lodged in Sydney alone.

  22. stackja

    Gavin R Putland
    #2640697, posted on February 19, 2018 at 12:44 pm

    I don’t remember this referendum. I will have to research it. Thank you.

  23. Habib

    Government is our enemy. Property rights in this dump have always been thinner than a boardinghouse bedsheet anyway, anyone who hocks themselves to the hilt for what’s basically a long-term lease with provisions for authority to break with minimal compensation at any time is a special kind of retard.

  24. Official legal confirmation that we now live in a Socialist State. Can’t say I’m surprised but good on Peter for fighting to have this formally acknowledged. Even more depressing is that the erosion of property rights was all done in the name of the biggest scientific fraud ever which, ironically, was pushed and promoted by Socialist vermin through their totalitarian desire to seize and control people’s property and lives.

    Of course nothing will happen as a result. Was it even in the papers last week? In times past a case like this would have led to notices nailed to trees and doors followed by meetings, then pitchforks and torches, then either some head chopping or the elites reluctantly signing documents.

    The only property issues people are concerned with these days is who will win The Block.

  25. Robber Baron

    I was considering purchasing some rural property, but I think I will now purchase some in another country where private property rights are respected. In fact, I think I will now review my property holdings and commence reducing my exposure to government theft.

  26. thefrolickingmole

    Ellen of Tasmania

    Good little CS Lewis piece.

    None of the people involved in the persecution of this bloke will think they have done anything wrong, quite the contrary, they will think their petty legalisms have done “good” over the evil bloke who owns the land.

    It needs to be stated that taking money and assets from people is effectively enslaving them.

  27. stackja

    Gavin R Putland
    #2640697, posted on February 19, 2018 at 12:44 pm

    The Constitution Alteration (Rights and Freedoms) 1988 was proposed legislation that was put to referendum in the Australian referendum, 1988. The legislation sought to enshrine in the Australian constitution various civil rights, including freedom of religion, rights in relation to trials, and rights regarding the compulsory acquisition of property.

    The “religious freedom” part of the proposed change was opposed by many churches and religious-affiliated schools concerned that it would be interpreted as requiring a level of church-state separation that would put public funding and government assistance for faith schools in jeopardy.

    Conversely, Liberal senator Richard Alston argued that the aforementioned provision could place the use of corporal punishment in religious schools beyond the power of the government to regulate

    Why was the compulsory acquisition of property not a separate question?

  28. rickw

    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.

    The outlook for Australia is grim, the voteherd and suburbanites constitute a huge voting block that is either disinterested in these issues or actively benefit from their progression.

    With respect to the voteherd, with 40% of Australians now either immigrants or children of immigrants, there is a very limited ingrained understanding of English Law and strange ideas such as property rights.

  29. Cat

    And people wonder why the 2nd Amendment is so heavily supported in the USA??? To protect one’s own property from the government… We have no such rights here – any and all levels of government can bully us into submission however and whenever they please. I thought John Howard was terrific in many areas, but in continuing diluting a property owners’ rights I completely disagreed.

  30. TFX

    Greg Hunt’s Emission Reduction Fund now looks like good policy as reductions in land clearing for carbon abatement were voluntary contracts between the landowner and the government. I did not think that I would ever be saying this about the emissions reduction fund.

  31. jupes

    Greg Hunt’s Emission Reduction Fund now looks like good policy as reductions in land clearing for carbon abatement were voluntary contracts between the landowner and the government.

    Good policy!? FMD it is utter insanity.

    I did not think that I would ever be saying this about the emissions reduction fund.

    And nor should you ever had, you idiot.

  32. Entropy

    The only people making money from the emission reduction fund will be the ticket clippers, the dodgy assessors, and ost importantly, my close friend and associate, Colonel M’Betele of the Nigerian Government. And AGL of course.

  33. RobK

    Greg Hunt’s Emission Reduction Fund now looks like good policy as reductions in land clearing for carbon abatement were voluntary contracts between the landowner and the government.

    I disagree. Where people voluntarily agreed to fence off remnant vegetation if the government gave them some money, that vegetation for the most part wouldn’t have been cleared anyway. Money wasted. Generally speaking Landcare provided a mechanism for landholders to be seen by others that they were doing the right thing by tendering their rights for the greater good when it was the legislation (various state amendments to EPActs) that forced landholders hands (absolutely not voluntary). Landcare and its subsequent incarnations are an insidious abomination that masks what is happening.
    In my own case, after being stymied by the State government for 18 years, I finally “volunteered” to an “Agreement to Reserve” 280ha (20% of my land) so that I could clear 250 ha. I foolishly allowed the crown to assess the land which I was entitled to clear and during the more than 4 years it took to assess it became unlawful to clear land without a permit. Prior to that time you merely had to lodge a notice of intent, which i had done and the authority (the Soil and Land Conservation Commissioner of W.A.) had no objection but put it forward for EPA assessment which had no power over clearing at the time but did so 4 years later.

  34. Squirrel

    The pertinent points which have been made by several Cats about the tree-related predations of local councils serve as yet another reminder that a State government (particularly one which is planning to establish its own Productivity Commission) looking for efficiencies could do no better than putting local government under the microscope.

  35. Forest Stylist

    Bob Carr introduced the legislation that Peter Spencer fought , to supposedly reduce clearing of native forest into grass paddock. Problem was that the Greens had “clearing ” redefined as removal of a single tree in a multitude of circumstances so logging, incidental tree removal etc were all in the “hundreds of thousands of hectares” supposedly cleared each year.
    The actual area cleared (and not maintained as forest) was a tiny % of this.
    Carr’s motives were to seen as the Greenest premier in history instead of which he devalued native forest and the land on which it grew and shafted many small timber communities at the same time.
    The Carbon offset issue came later

  36. cohenite

    It’s an odd case based as it is on a monstrous ideology masquerading as science. That ideology is a mixture of misanthropy (humans are destroying the planet) and communism (the only solution to humans destroying the planet is to replace the unfettered growth of capitalism with communism), both repugnant aspects of human nature. Bolstered by a relentless application of the principles of Gramsci and Alinsky with consequent support by the media, academia, bureaucracy and ultimately business itself as resource allocation shifts from productive to subsidised, the case of Spencer is a watershed.

    The Judiciary is complicit: this summary from the Appeal:

    257 By this course of conduct, Mr Spencer alleged that:

    (1) the Commonwealth acquired a benefit or advantage of a proprietary character in that it acquired either:

    (a) a financial advantage in not having to fund other ways to meet its emissions reductions target under the Kyoto Protocol to the United Nations Framework Convention on Climate Change, opened for signature 16 March 1998, 2303 UNTS 162 (entered into force 16 February 2005 and for Australia on 11 March 2008) (the Kyoto Protocol); or

    (b) the benefit of the carbon stored in the native vegetation on Mr Spencer’s land and what would otherwise have been Mr Spencer’s proprietary rights to use or sequester that carbon; and

    (2) the State acquired a benefit or advantage of a proprietary character being, in effect, the ability to control what occurred on, or was done with, Mr Spencer’s land.

    258 As a result, Mr Spencer submitted that the Commonwealth and State laws were invalid, together with the intergovernmental agreements, because just terms for the acquisitions were not given contrary to s 51(xxxi) of the Constitution and that he had suffered loss and damage for which either or both of the respondents were liable in compensation.

    259 The primary judge dismissed the application. Her Honour’s reasons for doing so were summarised as follows:

    3 In summary, I have concluded that the two impugned federal laws should not be characterised as laws with respect to the acquisition of property. When considered at a broader level, in their practical operation and effect as part of a scheme involving four intergovernmental agreements and state legislative controls on native vegetation clearance, there was no acquisition of property in contravention of s 51(xxxi).

    4 In the July 2007 decision of the NSW Rural Assistance Authority that Mr Spencer’s farm was not commercially viable because of the impact of the State’s native vegetation laws there was what can be characterised as a “sterilisation” or a “taking”, but it was by the State, and there was no acquisition by the State nor by any other person of an interest or benefit of a proprietary nature in the bundle of rights Mr Spencer held in his farm. If, contrary to my findings there had been an acquisition of his bundle of rights in Saarahnlee, Mr Spencer was offered just terms in November 2007 by the State’s offer to pay the then properly assessed market value for Saarahnlee.

    5 I have found Mr Spencer has not proven the existence of any “informal arrangement” between the Commonwealth and New South Wales. Nor does he have any private right of action in respect of the respondents’ conduct even if contrary to my findings that conduct was unlawful or the legislative or executive acts invalid. Nor has he proven any economic or non-economic losses flowing from the alleged unlawful conduct of the respondents.

    The broader level relied on by the court in the first instance and in the appeal is of course Agenda 21 as filtered through the UN’s gigantic alarmism apparatus. There is no legal, scientific or national sense in this decision but there is plenty of global ratification in it. Strong, bastard that he was, would be smiling in his hole.

  37. C.L.

    In summary, I have concluded that the two impugned federal laws should not be characterised as laws with respect to the acquisition of property. When considered at a broader level, in their practical operation and effect as part of a scheme involving four intergovernmental agreements and state legislative controls on native vegetation clearance, there was no acquisition of property in contravention.

    This is why I call it the Vibe Court. Most of the big, stare decisis decisions that come out of this second-rate tribunal are simply inventions with no relationship whatsoever to either black letters or canonical rationalities. There is no such thing as a “broader level” (to be measured and explicated by judges according to whim) in the Constitution.

  38. gbees

    “Land clearing restrictions reduced Australian emissions by 110 million tonnes of carbon dioxide”

    How does one prove this? It’s complete bunkum. Further Australia sinks more CO2 than it produces. the whole things a con. Government theft is rife. Time for a revolt.

  39. Gavin R Putland

    stackja @ #2640806 wrote:

    [Quoting Wikipedia:] The “religious freedom” part of the proposed change was opposed by many churches and religious-affiliated schools concerned that it would be interpreted as requiring a level of church-state separation that would put public funding and government assistance for faith schools in jeopardy.

    Yeah, right — as if the pro-life Catholic A-G Lionel Bowen, architect of needs-based funding of non-government schools under Whitlam, was going to put his own baby at risk.

    Why was the compulsory acquisition of property not a separate question?

    My understanding is that nobody expected any opposition to any part of the “rights and freedoms” question until it was too late, whereupon the conservatives, who were against some of the other questions, decided to oppose all four because they reckoned that if they opposed some and supported others, the voters wouldn’t have the attention span to distinguish between them!

    BTW, it is seldom pointed out that women’s right to vote is not entrenched in the Australian Constitution, but would have been entrenched if the second referendum question of 1988 had passed. During the campaign I didn’t hear a word about that implication (although I immediately noticed it myself). The conservatives called for a NO vote on that question, and it bit the dust like the others.

  40. Gerard

    Just one example of the damage being done by the climate scam. Maurice Strong must be giggling in his grave!!!

  41. RobK

    Maurice Strong must be giggling in his grave!!!

    Indeed.

  42. JohnA

    Dr Fred Lenin #2640792, posted on February 19, 2018, at 2:24 pm

    plain unambiguous English

    Dear Doctor,

    Sorry to disabuse you of the notion, but there is no such thing…

  43. John Constantine

    There are people being taxed by rural shires for areas of trees on their place they can’t use for profit.

    Not only does the State take your land, but it makes you pay an annual tax on the value of what it stole through the rate system.

    Not a fortune, but the precedent is the issue.

  44. cohenite

    Gavin R Putland

    #2640941, posted on February 19, 2018 at 5:35 pm

    Thank you; interesting posts.

    Australia doesn’t have a left/right wing but stupid and inept/cunning and unprincipled.

  45. Chris M

    People will get so angered as to apply Rule .303.

    There was a NSW farmer that did this to an EPA grub who tried to steal his land. That particular thief will steal no more but the outcome was ah, not one the government wishes to encourage.

  46. None

    And our SJW journos hypervrntilatd about Joyce’s sex life. I notice the useless shits like Mike Baird and Gladys B did sweet FA to stop this theft.

  47. Turtle of WA

    Reminds me of The Castle. With a sad ending. Sickening.

    Weird how that film was made by ABC commies.

  48. struth

    Weird how that film was made by ABC commies.

    It was a metaphor for aboriginal dispossession.

  49. mareeS

    Trees.

    We are having an argument with our council over an extension to an existing part of our property. Trees are within 3m of the foundations, so the council wants them removed.

    We are pretending to be greenies, as the trees predate this part of the building and so have a right to be there, plus they host possums and native birds.

    The quandary is this: if we are forced to remove the trees by council, we are breaking the council’s own environmental habitat rules, and will lose a nice amenity on our own private land that our neighbours also enjoy.

    All at our own expense. Of course.

  50. Alex Davidson

    Why was the Australian Constitution the key legislation?
    NSW’s Land Acquisition (Just Terms Compensation) Act 1991 No 22 would appear to me, a complete layman, to be relevant.
    Definition: acquisition of land means an acquisition of land or of any interest in land.

    I looked into this a few years ago. Taken at face value (as it should be), that Act should apply whenever the government imposes controls upon the use of land, because such controls most definitely fall within the meaning of “interest in land” defined in the Act as “power or privilege over, or in connection with, the land”.

    However my betters (all members of the political class) somewhat condescendingly informed me that when it comes to property rights and “law”, words magically change their meaning so that in all circumstances control and ownership of real property rests with the government. The Spencer case contains several good examples of this.

    I also found that my betters (the political class) tend to run a mile whenever such issues are raised, because they cannot provide a rational answer as to why, if theft is wrong, do they engage in it on an industrial scale and with impunity?

  51. Alex Davidson

    In summary, I have concluded that the two impugned federal laws should not be characterised as laws with respect to the acquisition of property. When considered at a broader level, in their practical operation and effect as part of a scheme involving four intergovernmental agreements and state legislative controls on native vegetation clearance, there was no acquisition of property in contravention.

    How can anyone have faith in the judiciary when they come up with statist nonsense like that?

    This is how a judge who wasn’t acting in the interests of big government and/or the UN might have put it:

    “When considered at a broader level, in their practical operation and effect as part of a scheme involving four intergovernmental agreements and state legislative controls on native vegetation clearance, there has been a clear violation of one of the most fundamental principles of western law – the sanctity of property – and on that basis the appeal is upheld.”

  52. Rob MW

    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.

    What the kellymentalistias won’t tell the average voting knob is that trees, along with all vegetation are wholly 100% renewable notwithstanding that on freehold they (the vegetation) are purchased as forming part of the land. From a broadacre farming point of view most often the fucking trees are just in the wrong place for the machinery or property development. Planting trees along fence lines is as simple as shit, either on a pro rata basis or some other equivalence.

    With a weak constitution and in the absence of a ‘bill of rights’ codifying the common law, and in this absence, allows the Commonwealth to do indirectly what the Constitution forbids (without compensation) the Commonwealth from doing directly.

    The problem is saturated in s6 and s7 of Chapter 5 of the Constitution which says, amongst other things, that the State Constitutions remain “in continuance” after the adoption of the Commonwealth of Australia Constitution *Act* (1901) which by and large just means that the States are just obtuse Colonies renamed. The Commonwealth, either by coercion or bribery, uses s6 and s7 to get the State(s) (er – Colonies) to do its dirty work for them therefore avoiding compensation at s51 (xxxi).

    The Commonwealth could, if it wished, bind the States/Colonies at s109 of Chapter 5 by bringing in a ‘Real Property’ Act (Title/Ownership by Registration) together with a ‘Conveyancing Act’ and consolidating (private) land law under Commonwealth jurisdiction without any need for a referendum – the same process as what the Commonwealth did with the adoption of the Corporations Act 2001.

    But they won’t do that because they are welded to the ability to legally thieve what they like when they like.

  53. Dallas Beaufort

    Even if Peter Spencer had made a planning application to use-clear and further crop his resource the State would have over ruled the application or corrupted the process to stop it as the public sector is user pays now and uses the private sector as its primary cash source. No matter the Green plans both major parties follow for green preferences.

  54. RobK

    Rob MW

    #2641711, posted on February 20, 2018 at 1:18 pm

    So there we have it. 


    I agree with that comment in its entirety.

  55. classical_hero

    This is why a ‘living constitution’ is bad for the little guy. We have not learnt the lessons of the past and by the time it affects the average person it will be too late.

    It seems like the court has decided to redefine words. This is not the fault of the law, but of activist judges. It looks like that we no longer control our destiny via the ballot box. I echo calls for a revolution.

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