Summary

18.1     The common law has long regarded a person’s property rights as fundamental. Jeremy Bentham said that ‘[p]roperty and law are born together, and die together’.^[1] At common law, property rights could be encroached upon ‘by the law of the land’,^[2] so long as any deprivation was not arbitrary and only where reasonable compensation was given.^[3]

18.2     This chapter and Chapters 19 and 20 are about the common law protection of vested property rights. This chapter provides the foundation for the two chapters that follow. It considers what is comprised in the concept of ‘property’ rights and how vested property rights are protected from statutory encroachment. Chapter 19 focuses upon interferences with personal property rights. Chapter 20 considers interferences with real property and the rights of landowners.

18.3     Property and possessory rights are explicitly protected by the law of torts and by criminal laws and are given further protection by rebuttable presumptions in the common law as to statutory interpretation, under the principle of legality. The Australian Constitution protects property from one type of interference: acquisitions by the Commonwealth other than ‘on just terms’.^[4] ‘Interference’ is a wider notion than ‘acquisition’ for this purpose: while actions through Commonwealth laws may not amount to an acquisition, so as to come within s 51(xxxi), they may nonetheless be regarded by property owners as an ‘interference’.