1. law, govt and politics
2. legal issues
3. human rights

ASSIGNMENT COVER SHEET
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UNIT
STUDENT NAME (print clearly)
CODE:
LAW2102
TITLE:
PROPERTY LAW I
STUDENT ID. NO.
THURTLE
JACKSON
SURNAME/FAMILY NAME
FIRST NAME
10288273
LECTURER NAME (print clearly)
DUE DATE
RUPERT JOHNSON
FRIDAY 5 APRIL
2013
TOPIC OF ASSIGNMENT
PROTECTION OF PROPERTY RIGHTS BY STATUTORY PRESUMPION AGAINST CHARTER OF RIGHTS (VIC)
GROUP/TUTORIAL (if applicable)
COURSE
CAMPUS
TUTORIAL #2
V72 BACHELOR OF LAW
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1
Section 1.1 – Overview
The concept of a set of rights exclusive to the owner of (generally) some object or land - ‘a description of a
legal relationship with a thing1, - is considered by the United Nations to be a human right2, and is one of the
bases3 of the legal system in Australia and elsewhere.
These rights can be interfered with by the State according certain conditions as set out by statute4. In order to
prevent frivolous or trivial occurrences of this, there exist protections which, inter alia, require clear language
to be used in legislation which enables the State to compulsorily acquire those rights5. In Western Australia,
this specific protection takes the form of a statutory presumption6. In Victoria, the same is enforced by
legislation: the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘the Charter’) s20.
This document sets out to examine the content of both the presumption and the legislation 7, and seek to
answer whether the protection granted to these rights in Western Australia is satisfactory, and whether the
protection granted by a Western Australian Act based upon the Charter would be satisfactory. To make that
determination, the nature and contents of property rights must be first established, and the results of the
Western Australian method and the Victorian method will be compared against the value of these rights and
the public interest.
Section 2.1 – Nature & Content of Property Rights
The nature and content of property rights are each a voluminous discussion topic: a comprehensive analysis of
either is outside the scope of this paper. However, it must be noted that property rights are regarded as a
fundamental human right8 to be recognised, are crucial to the legal system9, help to define Western capitalist
society10, change over time11, and are enforceable in rem, not merely in personam12. These many critical
understandings are generic to property rights in toto, and are not limited to the Australian position. Australian
property rights, though historically descended from those held in the United Kingdom, are unique 13, especially
in respect to real property. However, the degrees to which Australian property rights are unique are not
relevant to the question this essay seeks to answer.
Property rights arise from possession of chattels or realty14, and to claim such is to ‘… assert a strategically
important degree of control … a concentration of power over things and resources.’15 Though non-specific,
this is an accurate starting point for the discussion on the content of property rights. In more detail, one may
refer to Blackburn J’s commentary, where he said that: ‘… property [rights] … generally impl[y] the right to use
or enjoy, the right to exclude others, and the right to alienate.’ 16 As with the property rights’ nature, there is a
great deal of explanation which might be offered to explain their content, however, this limited understanding
1 Brendan Edgeworth, Christopher Rossiter, Margaret Stone, and Pamela O’Connor, Sackville & Neave Australian Property Law (LexisNexis
Butterworths, 9th ed, 2013) 9 [1.9] (‘Sackville’) citing Yanner v Eaton (1999) 201 CLR 351.
th
2 Adrian Bradbrook, Susan MacCallum, Antony Moore, and Scott Grattan, Australian Real Property Law (Thomson Reuters, 5 ed, 2011) 121 [3.30]
(‘Real Property’) citing Universal Declaration of Human Rights art 17.
3 Sackville, 2 [1.3].
4 R&R Fazzolari Pty Limited v Parramatta City Council; Mac’s Pty Ltd v Parramatta City Council [2009] HCA 12 [40] (‘Fazzolari’).
5 Ibid.
6 Clissold v Perry [1904] HCA 12 (‘Clissold’); Durham Holdings Pty Ltd v New South Wales [2001] HCA 7 [28] (‘Durham’).
7 The Act s20.
8
Real Property, 121 [3.30] (citing Universal Declaration of Human Rights art 17).
9
Sackville, 2 [1.3].
10
Ibid, 1 [1.1].
11
Real Property, 9-19 [1.55-1.140]
12
Sackville, above n 1.
13
Real Property, 3 [1.10].
14
Sackville, 64 [1.70].
15
Ibid, 4 [1.7E].
16
Ibid, 5 [1.8] citing Milirrpum v Nabalco (1971) 17 FLR 141 at 171.
2
is sufficient to allow for a discussion of the magnitude of protection offered against deprivation of property
rights by the State.
Relevant to the considerations outlined above, there are two significant means by which property rights can
be extinguished, and are protected against in law. Firstly, land (and its accompanying property rights) can be
compulsorily acquired by the State. Many statutes exist which allow governments to acquire land without the
consent of the existing owner17. Secondly, the doctrine of adverse possession, which allows an individual who
exclusively and continuously possesses land for a sufficient period of time such as to attain property rights in
that land which displace those of the original documentary owner18. This doctrine varies from jurisdiction to
jurisdiction19, especially with regards to the length of possession required, and is long-standing, having been
recognized in Australia since just after Federation (i.e.: 1904)20.
Section 2.2 – Content of the Statutory Presumption
Discounting any protections or limitations explicitly included within acquisition-enabling statutes, there is a
potentially significant protection that exists in Western Australia against compulsory acquisition of land by the
State. This is in the form of the following common law presumption21:
‘… that, within the Australian legal system, courts will presume that legislation (Federal, State or
Territory), or subordinate laws made under such legislation, do not amend the common law to
derogate from important rights enjoyed under that law, except by provisions expressed in clear
language.’
The principle upon which the presumption is based is at least 300 years old22. Recognised in Clissold in the
form of: ‘[a] bearing in mind that the Statute is to be construed, if possible, so as not to interfere with vested
rights …’ it was here justified by reference to Marquis of Cholmondeley v Lord Clinton (1821) 4 Bligh PC 1: even
in cases where title is claimed by possession, ‘… it is the public policy that possession should remain
undisturbed.’
Additionally, it is recognised and described in a more general form by Mason J23:
‘The general rule is that the courts will construe a statute in conformity with the common law and
will not attribute to it an intention to alter common law principles unless such an intention is
manifested according to the true construction of the statute.’
It is clear, then, that the statutory presumption is well founded, and continues to operate to this day across all
of Australia.
As an aside: it must be understood that a seemingly similar presumption was raised in Durham24, but was
found to be ‘legally untenable’25. This alternate presumption is distinct from the presumption described
above, and will be returned to at a later point.
17
Inter alia: Fazzolari [1]; Durham [15]; Clissold ‘Public Works Acts 1900 (Vic)’; Mandurah Enterprises Pty Ltd v Western Australian Planning
Commission [2010] HCA 2 [13] (‘Mandurah’). This is not an exhaustive list.
18
Abbatangelo v Whittlesea City Council [2007] VSC 529 [2] (‘Abbatangelo’).
19
Real Property, 121 [3.30].
20
Clissold.
21
Durham, [28].
22
Ibid, [30].
23
American Dairy Queen (QLD) Pty Ltd v Blue Rio Pty Ltd [1981] HCA 65 [17] (‘American Dairy Queen’).
24
Durham, [26].
25
Ibid.
3
Section 2.3 – Application of the Statutory Presumption
In Clissold the presumption is discussed briefly in the context of respecting rights arising under title obtained
through possession: ‘When this land was resumed, Clissold was in possession, and that possession gave him
certain definite rights.’ Guided by the presumption, it was held that where the Act in that case26 allowed for
compensation for land taken for public purposes, when in that land so taken was held a private interest, even
when such was gained merely through possession, compensation must be allowed27. Thus the presumption
enabled a protection to at least the degree specified in the Act in that case 28 of the rights that the appellant in
that case had attained through possession of the taken land.
American Dairy Queen turned on whether the Act in that case29 acted ‘so as to deny to a sublessee of land let
under Pt XI of the Act [in that case] the right to dispose of his interest in the land.’ 30 Mason J observed that,
inter alia, ‘Pt XI does not contain a detailed exposition of the kind that would indicate an intention to …
displac[e] existing common law principles.’ 31 The other justices largely agreed32: a clear application of the
presumption.
Durham contains a clear and concise application of the presumption to make an opposite finding. In that case,
the justices agreed with the Court of Appeal’s decision that the statute referred to (the Coal Acquisition Act
1981 (NSW)33) clearly did rebut the presumption34. Lengthy discussion regarding constitutionality of the Act
found in this case is not relevant to the purpose set out above at s1.1 of this document.
Fazzolari contains perhaps the most explicit application of the presumption: French CJ stated that the
presumption is linked to legislative intention, and ‘where a statute is capable of more than one construction,
that construction will be chosen which interferes least with private property rights.’35 In this case, strict
attention was given to the purpose36 of the taking of the land in order for such to comply with the limitations
given to the power set out in the Local Government Act 1993 (NSW) s188(1). It was held that the power given
in s186, limited by s188, was sufficiently clear to allow for the State (in this case the council) to interfere with
private rights over land37. However, the execution of the power by the respondent in that case was found to
contravene the limitations38, and thus be invalid39. Although by indirect discussion, this is another instance of
a protection being afforded by the presumption.
Mandurah’s treatment by the High Court is very similar to that given to Fazzolari40. The taking of land by the
respondent was set against the statutory limitations to the provision granting the taking of land for a
purpose41. The presumption was considered42, and it was again found that the power-granting provision was
26
Clissold: ‘Public Works Act 1900 [NSW]’.
Ibid: ‘It would be contrary to the principles of construction which have been already referred to … to hold that a man who has a possessory title
… has not disclosed a primâ facie case for compensation.’
28
Clissold, above n 30.
29
American Dairy Queen, 680 [1].
30
Ibid, 683 [18].
31
Ibid, 683 [20].
32
Ibid, 686.
33
Durham, [2].
34
Ibid, [6].
35
Fazzolari, [43].
36
Ibid, [51].
37
Ibid, [45].
38
Ibid, [58].
39
Ibid, [70].
40
Mandurah, [32].
41
Ibid, [1].
42
Ibid, [32].
27
4
sufficiently clear to validly effect the actions so taken by the respondent43, though some (and not all) parts of
these actions were inconsistent with the required purpose, and these parts only were found to be invalid44.
Section 2.4 – The Victorian Charter of Human Rights and Responsibilities Act 2006
The most obviously relevant section of the Charter (s20) states: ‘A person must not be deprived of his or her
property other than in accordance with law.’ Abbatangelo mentions this provision very briefly in obiter, saying
it is unclear whether a possessor or a documentary title owner would be benefitted during an adverse
possession dispute45.
Protection may also be found in s13(a) against arbitrary interference with one’s home. Combined with s32(1),
that where possible statutory interpretation must be compatible with human rights, and s32(2), allowing
international law to be considered for that purpose, a more robust defense emerges. Through detailed
discussion in Nolan v MBF Investments Pty Ltd [2009] VSC 244 [100-180] (‘Nolan’) and summary in MBF
Investments Pty Ltd v Nolan [2011] VSCA 114 [31-35] (‘MBF’) the effect of the Charter was largely dismissed,
prima facie because the sale occurred before the Charter was enacted46, however, the discussion it would
have enlivened was imported via a statutory presumption unrelated to the one discussed in detail in s2.2-3
above.47
Section 3.1 – Satisfactoriness of Protections Granted
As to whether the statutory presumption mentioned at 2.2-3 satisfactorily protects property rights, I find it
difficult to argue so given the reliance upon further presumptions in Durham48, Nolan, and MBF. It is only in
concert with these additional statutory presumptions of international compliance that anything approaching a
satisfactory (in this case meaning comprehensive protection for title-holders) outcome is achieved. There are
comments in Durham to the effect that there could or should be a presumption requiring ‘just’ compensation,
but this is rejected comprehensively49.
Would private property rights within Western Australia be better protected if there were a Victoria-style
Charter in effect? It seems based on the application of the above that the Charter is unlikely to make a
significant difference. Reliance upon international legal principles and international legal obligations (like the
Universal Declaration Human Rights) can already be achieved without reliance upon a Charter-like document,
as is clearly demonstrated in Nolan and MBF, and argued in Sackville50. It is arguable that such a document
will provide more mischief than mainstay when it comes to defending property rights: adverse possession
may encounter compatibility issues with international human rights51, though some already have rejected
that view in Australia52.
43
Ibid, [33].
Ibid, [49].
45
Abbatangelo, [3].
46
Nolan, [174-176].
47
MBF, [32, 33].
48
Durham, [29].
49
Ibid, [26]. Sackville, [1.68E].
50
Sackville, 62 [1.67].
51
Real Property, 123 [3.35].
52
Ibid, 122 [3.30]: see commentary re: Pagone J’s arguments.
44
5
Section 4.1 – Bibliography
A Articles/Books/Reports
Bradbrook, Adrian, Susan MacCallum, Antony Moore, and Scott Grattan, Australian Real Property Law
(Thomson Reuters, 2011)
Edgeworth, Brendan, Christopher Rossiter, Margaret Stone, and Pamela O’Connor, Sackville & Neave
Australian Property Law (LexisNexis Butterworths, 2013)
B Cases
Abbatangelo v Whittlesea City Council [2007] VSC 529
American Dairy Queen (QLD) Pty Ltd v Blue Rio Pty Ltd [1981] HCA 65
Clissold v Perry [1904] HCA 12
Durham Holdings Pty Ltd v New South Wales [2001] HCA 7
Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2010] HCA 2
Nolan v MBF Investments Pty Ltd [2009] VSC 244
MBF Investments Pty Ltd v Nolan [2011] VSCA 114
R&R Fazzolari Pty Limited v Parramatta City Council; Mac’s Pty Ltd v Parramatta City Council [2009] HCA 12
C Legislation
Charter of Human Rights and Responsibilities Act 2006 (Vic)
6