Should Australian Bills of Rights Protect Property Rights?

Canada: Alvaro Alexander , ‘Why Property Rights Were Excluded from the Canadian Charter of Rights and Freedoms’ (1991) 24 Canadian Journal of Political Science 309. Victoria: Victorian Legal and Constitutional Committee, Report on the Desirability or Otherwise of Legislation Defining and Protecting Human Rights, April 1997, 223–5. South Africa: See eg, Chaskalson Matthew , ‘Stumbling Towards Section 28: Negotiations Over the Protection of Property Rights in the Interim Constitution’ (1995) 11 South African Journal on Human Rights 222; Smuts Dene (1998) 14 South African Journal on Human Rights 197.

Human Rights Consultation Committee, Rights, Responsibilities and Respect: The Report of the Human Rights Consultation Committee, (November 2005); Office of the Attorney General (Media Release, 20 December 2005).

Australian Capital Territory (Self-Government) Act 1988 (Cth) s 23(1)(a); Northern Territory (Self-Government) Act 1978 (Cth) s 50; Norfolk Island Act 1979 (Cth) s 19(2)(a).

See van der Walt A J , Constitutional Property Clauses: A Comparative Analysis (1999); Allen Tom , The Right to Property in Commonwealth Constitutions (2000).

International Covenant on Civil and Political Rights (opened for signature 16 December 1966) 999 UNTS 171 (entered into force 23 March 1976).

International Covenant on Economic, Social and Cultural Rights (opened for signature 16 December 1966) 993 UNTS 3, (entered into force 3 January 1976).

Universal Declaration of Human Rights, GA Res 217A(III), (10 December 1948).

Shirley Jonathan , ‘The Role of International Human Rights and the Law of Diplomatic Protection in Resolving Zimbabwe's Land Crisis’ (2004) 27 Boston College International & Comparative Law Review 161, 166.

Contrast s 43.1 of the Irish Constitution — but note how s 43.1 is balanced by s 43.2.

Harris Jim , ‘Is Property a Human Right?’ in McLean Janet (ed), Property and the Constitution (1999) 64, 78; Harris J W , Property and Justice (1996).

Murphy Liam and Nagel Thomas , The Myth of Ownership (2002) 74.

See also van der Walt , above n 4, 229 ff (discussing the complex relationship between s 43 and s 40.3.2, which provides a limited individual guarantee).

See, eg, Epstein Richard A , Takings: Private Property and the Power of Eminent Domain (1989 reprint)

Cf Bentham Jeremy , Theory of Legislation (1911) 113 quoted in Wily v St George Partnership Banking Ltd (1999) 84 FCR 423, 426.

Waldron Jeremy , ‘The Normative Resilience of Property’ in McLean Janet (ed), Property and the Constitution (1999) 170, 185–6.

Fischel William A , Regulatory Takings: Law, Economic, Politics (1995) 188.

For a survey of the economic literature on property rights guarantees, see Miceli Thomas J and Segerson Kathleen , ‘Takings’ in Bouckaert Boudewijn and De Geest Gerrit (eds), Encyclopedia of Law and Economics, Volume IV; The Economics of Public and Tax Law (2000) 328 available at <http://encyclo.findlaw.com/tablebib.html> at 31 January 2006. The economic literature is divided on the merits of property rights guarantees.

Linda Cf McClain C and Fleming James E , ‘Constitutionalism, Judicial Review, and Progressive Change’ (2005) Texas Law Review (forthcoming), <http://ssrn.com/abstract=672382>, 14–15 discussing the different domains of justice.

For example, in the International Convention on Civil and Political Rights, the International Convention on Economic, Social and Cultural Rights, the Convention on the Elimination of Racial Discrimination, the Convention on the Elimination of Discrimination Against Women and the Universal Declaration of Human Rights.

Cf Pennsylvania Coal Company v Mahon 260 US 393, 415 (1922) ( Holmes J ).

Nedelsky Jennifer , ‘Should Property be Constitutionalized? A Relational and Comparative Approach’ in van Maanen G E and van der Walt A J (eds), Property Law on the Threshold of the 21 ^st Century (1996), 424.

Cf Cole Daniel H , ‘Political Institutions, Judicial Review, and Private Property: A Comparative Institutional Analysis’, Indiana University School of Law, (2007) 15 Supreme Court Economic Review, <http://ssrn.com/abstract=745485> at 31 January 2006.

See Fischel , above n 16, who argues that the risks are much greater in relation to local government.

This discussion draws on Evans Simon , ‘Constitutional Property Rights in Australia: Reconciling Individual Rights and the Common Good’ in Goldsworthy Jeffrey Campbell Tom and Stone Adrienne (eds), Human Rights Without a Bill of Rights: Institutional Performance and Reform in Australia (Ashgate) (in press for 2006).

Victoria, Parliamentary Debates, Legislative Assembly, 18 June 1996, 782–3.

Victoria, Parliamentary Debates, Legislative Council, 25 June 1996, 704 (Gould).

Victoria, Parliamentary Debates, Legislative Council, 25 June 1996, 717 (Hall).

See generally Victoria, Parliamentary Debates, Legislative Council, 25 June 1996, 702–21; Victoria, Parliamentary Debates, Legislative Assembly, 18 June 1996, 781–811.

(1988) 166 CLR 186.

Cf also Western Australia v The Commonwealth (1995) 183 CLR 373 (Native Title Act Case).

(1998) 195 CLR 337.

(2001) 205 CLR 399.

See Evans Simon , ‘When is an Acquisition of Property Not an Acquisition of Property?’ (2000) 11 Public Law Review 183, 184.

Cf Sherwin Emily L , ‘Three Reasons Why Even Good Property Rights Cause Moral Anxiety’, Cornell Legal Studies Research Paper No 06–001, <http://ssrn.com/abstract=875634> at 31 January 2006.

Nedelsky , above n 21, 431.

See generally, Sawer Marian , The Ethical State (2003).

198 US 45 (1905).

(1907) 2 CAR 1.

(2001) 205 CLR 399 at 414.

[2004] 2 AC 557 at [32].

Victorian Legal and Constitutional Committee, Report on the Desirability or Otherwise of Legislation Defining and Protecting Human Rights, April 1997.

Ibid 223–5.

This would need to be subject to reasonable regulation, for example to allow laws about property rights of minors and the mentally ill.

The approach of the Victorian Human Rights Consultation Committee is therefore to be commended. It rejected ‘an open-ended right to compensation for property deprivation’ (above n 2, 37) and instead proposed in s 19 of its draft Bill that ‘[a] person must not be deprived of his or her property other than in accordance with law’.