By Bronwyn Waugh. B.Bus. JD. Barrister and
Solicitor. Director Cornerstone Legal.
Introduction
The State passed legislation to arbitrarily seize land from the City of Perth without the payment of Compensation. This should make us all shake in our boots, but the Labor Party says it is for the greater good.
We all should be concerned when the thin line of Parliamentary oversight over excessive use of Government Power is snubbed.
The protection of private property from arbitrary government seizure is a cornerstone of a free society.
The Western Australian Constitution does not protect private property rights or guard against the arbitrary deprivation of property by the State. The fathers of the Constitution, followed the English approach where rights were not enshrined in the Constitution.
I would argue that the right of free speech, right to liberty, the right to life, the right to holding property was so fundamental that it could not be envisaged that these rights would be infringed by the Parliament, but if these rights would be that the Parliament would provide the safe guard and ultimately the ballot box.
The “greater public good” never justifies the arbitrary removal of rights. This Government has lost it’s way. It guillotines debate, and runs rough shod over the freedoms we must all hold dear.
Wake up Geoff, the residents of South Perth want you to do more than ask the Ministers Dorothy dix questions. They want you to stand up for rights and freedoms.
As a lawyer I understand and will stand up for rights and freedoms that we must all hold dear no matter on what side of the house we sit. This is not about Liberal or Labor this is about standing up for the rights of the residents of this state to live without the tyranny of the State.
The necessity of the protection of private property.
Property rights not only provide economic security but also represent personal autonomy and liberty. Government intervention in property ownership must be justified, transparent, and subject to rigorous checks and balances.
John Stuart Mill and Private Property
The thoughts of John Stuart Mill, a prominent 19th-century philosopher, remain highly relevant to this debate. Mill’s views on liberty, property, and government intervention offer important insights into why safeguarding property from arbitrary government action is essential.
The Importance of Property Rights
Property rights are foundational to the functioning of a market economy and the preservation of individual freedom. They allow individuals to use resources as they see fit, contribute to economic productivity, and build wealth. More than just economic assets, properties often have personal and sentimental value, representing the fruits of an individual’s labour and life choices.
The arbitrary taking of property by the government undermines these rights, creating uncertainty and discouraging investment. When property rights are not secure, individuals are less likely to engage in long-term planning or investments that benefit society as a whole.
Therefore, protecting property from arbitrary government interference is not just a matter of individual rights but also a crucial factor in ensuring economic stability and growth.
The Principle of Utility and Property Rights
As John Stuart Mill said, in his seminal work “On Liberty,” any government action should be proportional, transparent, and subject to public scrutiny.
Central to Mill’s philosophy is the “harm principle,” which asserts that individuals should be free to act as they choose unless their actions harm others. Applied to property rights, this principle implies that the government should not interfere with an individual’s use of their property unless it directly harms others. Arbitrary government actions that seize property without just cause or due process violate this principle by harming individuals without clear justification.
Like Mills I believe we must be alert for the “tyranny of the majority.” This is where democratic governments might unjustly infringe upon the rights of individuals or minority groups. In the context of property rights, this could manifest as governments catering to popular demands at the expense of individual property owners, seizing land or assets for short-term political gains rather than legitimate public needs.
The Necessity of Due Process and Transparency
Mill’s philosophy also supports the idea that government actions, particularly those that infringe on property rights, must be subject to rigorous checks and balances. Due process and transparency are essential in ensuring that government power is not abused. Arbitrary takings, where property is seized without proper justification, violate these principles and erode public trust in government institutions.
For Mill, the rule of law was a critical safeguard against arbitrary government actions. He believed that laws should be clear, consistent, and applied equally to all. In cases where the government must take property, such as for public projects, it should do so through a transparent process that includes fair compensation and the opportunity for affected individuals to challenge the decision.
The Role of Public Interest
While Mill recognized the need for government to act in the public interest, he was cautious about allowing this principle to justify widespread interference with individual rights. He argued that public interest should not be used as a blanket excuse for infringing on property rights without careful consideration of the consequences.
In modern contexts, this view remains highly relevant. Governments often justify property seizures for reasons such as urban development, infrastructure projects, or environmental protection. While these may serve the public good, they must be weighed against the rights of individuals. Mill would likely argue that such actions should only be taken when absolutely necessary, with a focus on minimizing harm to property owners and ensuring that the benefits to society truly outweigh the costs.
John Stuart Mill’s views on liberty, utility, and government intervention provide a strong philosophical foundation for the protection of property rights against arbitrary government actions. Mill’s emphasis on the harm principle, due process, and the need for transparency highlights the dangers of unchecked government power in matters of property.
Protecting property from arbitrary government taking is not only a matter of justice for the individual but also a safeguard for the broader principles of liberty and fairness that underpin a free society. Governments must always ensure that any interference with property rights is justified, proportional, and conducted with the utmost respect for due process and transparency. Only by doing so can we uphold the delicate balance between public interest and individual liberty that Mill so passionately defended.
When these principals are abused the role of Parliament is paramount to the excess of government power. The arbitrary taking of property with fair and just compensation or a fair process we must all be alarmed.
When the Labor used its powers to seize land from the City of Perth it claimed it was doing so for the greater public good. However, such a utilitarian argument must always be constrained.
It seems to me that the “greater public good” argument is what Labor puts forward anytime it wishes to impinge rights and freedoms.
The greater public good arguments have failed in history and must always be constrained by the question of whether it is the exercise of a power that is absolutely necessary. Arguing something is in the interests of the greater public good often constrains individual rights and strikes at the heart of Liberal values.
I must explain further why the passing of this legislation is an affront to the freedoms we all hold dear.
Property Rights must not be abused
In 1215, the barons confronted King John at Runnymede, a meadow by the River Thames, to challenge his abuse of power, forcing him to negotiate. This agreement, known as the Magna Carta, established fundamental freedoms, limiting the king’s powers and protecting individual rights.
Article 39 of the Magna Carta states:
“No freeman shall be arrested, or detained in prison, or deprived of his freehold, or in any way molested; and we will not act against him, unless by lawful judgment of his peers and by the law of the land.”
Many are surprised that the State Constitution does not protect land from government seizure without compensation. In Western Australia, the only safeguard against such actions is representative democracy
Rights based constitutions.
The framers of the Australian Constitution were influenced by the U.S. Constitution, which includes a Bill of Rights. However, Australia’s Constitution does not comprehensively protect individual rights. Instead, it focused on establishing a functional federation, leaving civil liberties largely to the states.
Section 51(xxxi) of the Australian Constitution ensures that the federal government cannot expropriate property without just compensation. This provision reflects concerns that the Commonwealth might have more aggressive acquisition powers than the states.
Just terms and a rights based approach was not how the State Constitution was drafted.
However, the High Court has determined that this “just terms” provision only applies to the Commonwealth, not to state governments. States can acquire property without being bound by the requirement of just terms, though they are generally expected to provide fair compensation under ordinary legislation.
There have been attempts to argue that the just terms provisions of the Australian Constitution apply to state laws, but the High Court has consistently rejected this interpretation. In the case of Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399, the Court confirmed that state constitutions are not subject to the Commonwealth’s just terms protections.
Historically, property rights were considered so fundamental that the framers of state constitutions did not see the need to include explicit protections. It was assumed that state governments would act fairly, and common law principles would provide sufficient protection.
In Western Australia’s Constitution Act 1889, Section 2 emphasizes the powers of the Legislative Council and Assembly to make laws for the peace, order, and good government of the colony. However, it does not explicitly protect property rights from arbitrary government actions.
The absence of just terms provisions in state constitutions is a consequence of their colonial origins. State constitutions were influenced by British constitutional principles, which did not typically include explicit rights protections. States were trusted to govern property rights through ordinary legislation, and it was assumed that state parliaments, being closer to the people, would act fairly.
Property rights in the minds of the fathers of the State Constitution
In 1831, Viscount Goderich of the Colonial Office emphasized the importance of protecting property rights, but it was still assumed that state governments would do so without needing constitutional guarantees.
Today, we see the consequences of this assumption. The Western Australian government has now passed legislation to seize land from the City of Perth without fair compensation, highlighting the lack of constitutional protections for property rights. This should be a matter of concern for us all. Put simply, if this can be done to the City of Perth, it can be done to any resident of this state.
We must reconsider the importance of private property rights and ensure they are protected, either through constitutional amendments or new legislation. The current situation, where governments can seize property without fair compensation, undermines the foundations of a fair and just society.
You have my guarantee that I will never sell out the rights of the individual that I am required to stand up for as a member of parliament.