The common law and private property

18.4     Blackstone observed, in 1773, that the ‘right of property’ was a deeply rooted idea.^[5] In the national consultation on ‘Rights and Responsibilities’, conducted by the Australian Human Rights Commission (AHRC) in 2014, the recognition and protection of ‘property rights’ was one of the four areas identified as being of key concern.^[6]

18.5     Almost a century before Blackstone wrote, conceptualisations of property were bound up in the struggle between parliamentary supremacy and the power of the monarch. This conflict resulted in the ‘Glorious Revolution’ of 1688.^[7] John Locke (1632–1704) celebrated property as a ‘natural’ right, advocating the protection of a citizen in ‘his Life, Health, Liberty, or Possessions’.^[8] Jeremy Bentham (1748–1832) continued the philosophical argument about property, arguing that rights of ‘property’ are a matter of law:

Property and law are born together, and die together. Before laws were made there was no property; take away laws, and property ceases.^[9]

18.6     Concern with protection of citizens from arbitrary interference by the Crown was reflected, in relation to property, as concerns about the taking of property by government.

18.7     By the period following World War II, the protection of private property rights from interference had become enshrined in the first international expression of human rights, the Universal Declaration of Human Rights (UDHR) in 1948,^[10] which provided that ‘[n]o one shall be arbitrarily deprived of his property’.^[11]

18.8     In his Commentaries on the Laws of England, while calling the right of property an absolute right,^[12] Blackstone described the power of the legislature to encroach upon property rights in terms that are still reflected in laws today:

The third absolute right, inherent in every Englishman, is that of property: which consists in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land … The laws of England are … extremely watchful in ascertaining and protecting this right. Upon this principle the great charter has declared that no freeman shall be disseised, or divested, of his freehold, or of his liberties, or free customs, but by the judgment of his peers, or by the law of the land.^[13]

18.9     Property rights could be encroached upon, in the sense of being taken away,^[14] ‘by the law of the land’, but only when it was not done arbitrarily, and where reasonable compensation was given:

But how does [the legislature] interpose and compel? Not by absolutely stripping the subject of his property in an arbitrary manner; but by giving him a full indemnification and equivalent for the injury thereby sustained … All that the legislature does is to oblige the owner to alienate his possessions for a reasonable price; and even this is an exertion of power, which the legislature indulges with caution, and which nothing but the legislature can perform.^[15]

18.10  Property rights could be affected by law, controlled or diminished by ‘the laws of the land’, but an ‘alienation’ or ‘divesting’ had to be exercised ‘with caution’, and in return for a ‘reasonable price’. Within the modern parliamentary context, many laws have been made that interfere with property rights. The focus then is upon how far such interference can go, before it may be regarded as unjustified.

18.11  Some protections of property and possessory rights are found in the law of torts and criminal law and in principles of statutory construction, discussed below. The tort of trespass was the principal action against a person who came upon the land of another without authorisation. In the leading case of Entick v Carrington, Lord Camden LCJ said:

By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my licence, but he is liable to an action, though the damage be nothing … If he admits the fact, he is bound to shew by way of justification, that some positive law has empowered or excused him.^[16]

18.12  The tort of nuisance may avail one landowner against another in relation to some enjoyment of land, which in turn may restrict what another may do with neighbouring land.^[17]

18.13  Similarly, the common law provides protection against unauthorised interference or detention of chattels. Entick v Carrington concerned not just an unauthorised search but also a seizure of private papers. Wilkes v Wood^[18] set out enduring common law principles against unauthorised search and seizure, later reflected in the Fourth Amendment to the United States Constitution.

18.14  Unauthorised interferences with chattels may be a trespass or conversion of the chattels, while unauthorised detention, even if initially authorised by statute, may give rise to tort actions in conversion or detinue once that authority has lapsed. For example, in National Crime Authority v Flack, the plaintiff, Mrs Flack, successfully sued the National Crime Authority and the Commonwealth for the return of money found in her house and seized by the Authority. Heerey J noted a common law restriction on the seizure of property under warrant:

at common law an article seized under warrant cannot be kept for any longer than is reasonably necessary for police to complete their investigations or preserve it for evidence. As Lord Denning MR said in Ghani v Jones [1970] 1 QB 693 at 709: ‘As soon as the case is over, or it is decided not to go on with it, the article should be returned’.^[19]