6.1 The common law has long regarded a person’s property rights as fundamental. William Blackstone said in 1773: ‘There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property.’
6.2 However, many laws have been made that interfere with property rights. This chapter discusses the source and rationale of the protection of vested property rights; how these rights are protected from statutory encroachment; and when laws that interfere with these rights may be justified.
6.3 The ALRC calls for submissions on two questions about these rights.
Question 6–1 What general principles or criteria should be applied to help determine whether a law that interferes with vested property rights is justified?
Question 6–2 Which Commonwealth laws unjustifiably interfere with vested property rights, and why are these laws unjustified?
6.4 In his Commentaries, Blackstone called the right to property an absolute right, anchored in the Magna Carta (1215), and described the limited power of the legislature to encroach upon it 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.
So great moreover is the regard of the law for private property, that it will not authorize the least violation of it; no, not even for the general good of the whole community. If a new road, for instance, were to be made through the grounds of a private person, it might perhaps be extensively beneficial to the public; but the law permits no man, or set of men, to do this without consent of the owner of the land … Besides, the public good is in nothing more essentially interested, than in the protection of every individual’s private rights, as modelled by the municipal law. In this and similar cases the legislature alone can, and indeed frequently does, interpose, and compel the individual to acquiesce. But how does it 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.
6.5 Arguably, for many centuries the common law principles reflected a view that the rights of property owners were more deserving of protection than the personal rights of liberty and safety of non-property owners.
6.6 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, discussed below. An interference with real property in the possession of another may give rise to the tort of trespass to land or of nuisance. In Entick v Carrington (1765), 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.
6.7 These rights have long been exercisable against the Crown or government officers acting outside their lawful authority. After citing the passage above, Mason CJ, Brennan and Toohey JJ in Plenty v Dillon (1991) said that the principle in Entick v Carrington ‘applies to entry by persons purporting to act with the authority of the Crown as well as to entry by other persons’. Their honours then quoted Lord Denning adopting a quotation from the Earl of Chatham:
The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail—its roof may shake—the wind may blow through it—the storm may enter—the rain may enter—but the King of England cannot enter—all his force dares not cross the threshold of the ruined tenement.’ So be it—unless he has justification by law.
6.8 Similarly, in Halliday v Nevill (1984), Brennan J said:
The principle applies alike to officers of government and to private persons. A police officer who enters or remains on private property without the leave and licence of the person in possession or entitled to possession commits a trespass and acts outside the course of his duty unless his entering or remaining on the premises is authorized or excused by law.
6.9 Implicit in this statement of the law is the recognition that the law—common law or statute—may authorise entry onto private property. Examples of such statutes are discussed in Chapter 7, which deals with laws authorising what would otherwise be a tort.
6.10 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 (1763) set out enduring common law principles against unauthorised search and seizure, later reflected in the 4th amendment to the United States Constitution.
6.11 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 (1998), 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 National Crime Authority. Heerey J noted a common law restriction on the seizure of property under warrant:
[A]t 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  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.’
What is vested property?
6.12 The idea of property is multi-faceted. The term ‘property’ is used in common and some legal parlance to describe types of property, that is, both real and personal property. ‘Real’ property encompasses interests in land and fixtures or structures upon the land. ‘Personal’ property encompasses both tangible things—chattels or goods—and certain intangible legal rights, such as copyright and other intellectual property rights, shares in a corporation, beneficial rights in trust property, rights in superannuation and some contractual rights, including, for example, many debts.
6.13 In law, the term ‘property’ is perhaps more accurately or commonly used to describe types of rights. Dealing with a term ‘property’ in a particular Act, the High Court of Australia said:
In [the Act], as elsewhere in the law, ‘property’ does not refer to a thing; it is a description of a legal relationship with a thing. It refers to a degree of power that is recognised in law as power permissibly exercised over the thing. The concept of property may be elusive. Usually it is treated as a bundle of rights.
6.14 For land and goods, both of which may be possessed by someone other than the owner,property rights in the sense of ownership must be distinguished from mere possession of the land or goods, even though the latter may give some rise to qualified legal rights and from mere contractual rights affecting the property. The particular right may be regarded as ‘proprietary’ even though it is subject to certain rights of others in respect of the same property: a tenancy of land, for example, gives the tenant rights that are proprietary in nature as well as possessory.
6.15 A ‘property right’ may take different forms depending on the type of property. Implicit in a property right, generally, are all or some of the following rights: the right to use or enjoy the property, the right to exclude others, and the right to sell or give away. Property rights also depend on the statutory framework of laws and property rights affecting the particular type of property, for example, the system of land tenure in a particular state or territory, or a scheme such as the Personal Property Securities Act 2009 (Cth); and the interaction between that statutory scheme and the common law.
6.16 The ALRC’s Terms of Reference refer to ‘vested property rights’. ‘Vested’ is primarily a technical legal term to differentiate a presently existing interest from a contingent interest. However, particularly in the United States, the term has acquired rhetorical force in reinforcing the right of the owner not to be deprived of the property arbitrarily or unjustly by the state or, in disputes over land use, to reflect the confrontation between the public interest in regulating land use and the private interest of the owner—including a developer—in making such lawful use of the land as he or she desires. The tension is particularly strong with respect to retrospective legislation.
William Blackstone, Commentaries on the Laws of England (The Legal Classics Library, 1765) Book 2.
Blackstone named two other absolute rights: the right of personal security and the right of personal liberty.
Blackstone, above n 1, Book 2.
For example, the common law’s slow-to-develop protection of uninvited entrants from intentional or negligent physical injury by occupiers. It was only in 1828 in Bird v Holbrook (1828) that the courts declared the deliberate maiming of a trespasser, albeit only if it was without prior warning, to be unlawful: Bird v Holbrook (1828) 4 Bing 628. For negligent injury, trespassers were at first owed no duty of care; then, after Southern Portland Cement v Cooper  only a duty of common humanity; until 1984 when the High Court of Australia in Hackshaw v Shaw (1984) recognised a limited duty of reasonable care when there was a real risk that a trespasser might be present and injured: Southern Portland Cement v Cooper  AC 623 (PC); Hackshaw v Shaw (1984) 155 CLR 614.
Entick v Carrington  EWHC KB J98 1066.
Plenty v Dillon (1991) 171 CLR 635, 639 (Mason CJ, Brennan and Toohey JJ).
Southam v Smout (Unreported,  1 Q.B.) 308, 320.
Halliday v Neville (1984) 155 CLR 1, 10 (Brennan J). Brennan J was quoted in Plenty v Dillon (1991) 171 CLR 635, 639 (Mason CJ, Brennan and Toohey JJ).In Plenty v Dillon, Gaudron and McHugh JJ said ‘If the courts of common law do not uphold the rights of individuals by granting effective remedies, they invite anarchy, for nothing breeds social disorder as quickly as the sense of injustice which is apt to be generated by the unlawful invasion of a person’s rights, particularly when the invader is a government official’: ibid 655.
Entick v Carrington  EWHC KB J98.
Wilkes v Wood  2 Wilson 203; 98 E R 489.
National Crime Authority v Flack (1998) 86 FCR 16, 27 (Heerey J). Heerey J continued: ‘Section 3zv of the Crimes Act … introduced by the Crimes (Search Warrants and Powers of Arrest) Amendment Act 1994 (Cth) … did not come into force until after the issue and execution of the warrant in the present case. However it would appear to be not relevantly different from the common law’. For the current law, see, Crimes Act 1914 (Cth) ss 3ZQX–3ZQZB.
Also known in law as ‘choses in action’. Intangible rights are created by law. Not all legal rights are part of a person’s property: eg many of the common law rights discussed in this Issues Paper or the human rights recognised in international law and in the ACT and Victorian charters. Tangible things exist independently of law but law governs rights of ownership and possession in them.
Patent rights were held to be property rights that attracted the presumption against divesting by legislation or delegated regulations: UWA v Gray  FCA 498 .
Greville v Williams (1906) 4 CLR 694.
City of Swan v Lehman Bros Australia Ltd (2009) 179 FCR 243.
Yanner v Eaton (1999) 201 CLR 351, 365–366 (Gleeson CJ, Gaudron, Kirby and Hayne JJ).‘Property, in relation to land, is a bundle of rights exercisable with respect to the land. The tenant of an unencumbered estate in fee simple in possession has the largest possible bundle’: Minister of State for the Army v Dalziel (1944) 68 CLR 261, 284 (Rich J).
The owner of land is generally the person entitled beneficially to a fee simple estate in freehold tenure: Muray Raff, ‘Environmental Obligations and the Western Liberal Property Concept’ (1998) 22 MULR 657, 659.
Actual possession may give the possessor better rights than others whose interest does not derive from the true owner: see Newington v Windeyer (land) or National Crime Authority v Flack (goods) Possession may, in effect, give the possessor rights akin to proprietary rights. Note, ‘Not only is a right to possession a right of property but where the object of proprietary rights is a tangible thing it is the most characteristic and essential of those rights’: Minister of State for the Army v Dalziel (1944) 68 CLR 261, 284 (Rich J).
Milirrpum v Nabalco (1971) 17 FLR 141, 171 (Blackburn J). This judgement was quoted inBrendan Edgeworth et al, Sackville & Neave Australian Property Law (Lexis Nexis Butterworths, 9th Edition, 2013) 5. Some property rights may however be unassignable: see, Ibid 6.
That is, contingent on any other person’s exercising his or her rights: ‘an immediate right of present or future enjoyment’: Glenn v Federal Commissioner of Land Tax (1915) 20 CLR 490, 496, 501.See also, Planning Commission (WA) v Temwood Holdings Pty Ltd (2004) 221 CLR 30. The term ‘vested’ has been used to refer to personal property, including a presently existing and complete cause of action: See below at 6.20 Georgiadis v AOTC (1994) 179 CLR 297.
American States Water Service Co v Johnson 31 Cal App 2d 606,614; 88 P2d 770,774 (1939).
Walter Witt, ‘Vested Rights in Land Uses —A View from the Practitioner’s Perspective’ (1986) 21 Real Property, Probate and Trust Journal 317. A right is described as immutable and therefore ‘vested’ when the owner has made ‘substantial expenditures or commitments in good faith reliance on a validly issued permit’: Terry Morgan, ‘Vested Rights Legislation’ (2002) 34 Urban Lawyer 131.
‘There is no remedial act which does not which does not affect some vested right, but, when contemplated in its total effect, justice may be overwhelmingly on the other side’: George Hudson Limited v Australian Timber Workers’ Union (1923) 32 CLR 413, 434 (Isaacs J). For further discussion, see Ch 7.