The common law and private property

7.1          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’.[1] In the national consultation on ‘Rights and Responsibilities’, conducted by the Australian Human Rights Commission (AHRC) in 2014, ‘property rights’ was one of the four areas identified as being of key concern.[2]

7.2          This chapter and Chapter 8 are about the common law protection of vested property rights. This chapter considers what is comprised in the concept of ‘property’ rights and how vested property rights are protected from statutory encroachment. The chapter focuses upon interferences with personal property rights; Chapter 8 considers interferences with real property and the rights of landowners.

7.3          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, in which the Roman Catholic king, James II, was overthrown in favour of his Protestant daughter, Mary, and her husband, William of Orange, Stadtholder of the Netherlands, as Mary II and William III. John Locke (1632–1704) celebrated property as a ‘natural’ right, advocating the protection of a citizen in ‘his Life, Health, Liberty, or Possessions’.[3] Jeremy Bentham (1748–1832) continued the philosophical argument about property, anchoring it in laws:

Property and law are born together, and die together. Before laws were made there was no property; take away laws, and property ceases.[4]

7.4          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 (UNDHR) in 1948,[5] in providing that ‘[n]o one shall be arbitrarily deprived of his property’.[6]

7.5          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, 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.[7] 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.[8]

7.6          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[9] set out enduring common law principles against unauthorised search and seizure, later reflected in the fourth amendment to the United States Constitution.

7.7          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:

[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 [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’.[10]

7.8          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, for example, as an ‘arbitrary deprivation’, in the language of the UDHR. In his Commentaries on the Laws of England, while calling the right to property an absolute right[11] anchored in the Magna Carta, Blackstone 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.[12]

7.9         Property rights could be encroached upon ‘by the law of the land’, but only 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.[13]

7.10       As French CJ affirmed in R & R Fazzolari Ltd v Parramatta City Council, it ‘was and has remained the case in England and Australia that compulsory acquisition and compensation for such acquisition is entirely the creation of statute’.[14]

[1]           William Blackstone, Commentaries on the Laws of England (The Legal Classics Library, 1765) vol II, bk II, ch 1, 2.

[2]           Australian Human Rights Commission, Rights and Responsibilities (Consultation Report, 2015) 8.

[3]           John Locke, Two Treatises of Government (Cambridge University Press, First Published 1690, 2nd Ed, Peter Laslett Ed, 1967) 289. The timing of the publication relevant to the negotiation of the ascension of William and Mary is explained by Peter Laslett, in ch III of his introduction to the Two Treatises.

[4]           Jeremy Bentham, ‘Principles of the Civil Code’ in The Works of Jeremy Bentham, Published under the Supervision of His Executor John Bowring (1843) vol 1 pt I ch VIII ‘Of Property’, 309a. One of the main 17th century arguments about property was whether it was founded in ‘natural’ or ‘positive’ law. Bentham is representative of the positivist approach that was the foundation of modern thinking about property.

[5]           Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd Sess, 183rd Plen Mtg, UN Doc A/810 (10 December 1948).

[6]           Ibid art 17(2).

[7]           See Ch 8.

[8]           Entick v Carrington (1765) 19 St Tr 1029. The version of the report included in the English Reports, 95 ER 807, is an abbreviated form and does not include this precise quote.

[9]           Wilkes v Wood [1763] 2 Wilson 203; 98 ER 489.

[10]         National Crime Authority v Flack (1998) 86 FCR 16, 27. 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.

[11]         Blackstone named two other absolute rights: the right of personal security and the right of personal liberty.

[12]         Blackstone, above n 1, vol I, bk I, ch 1, 134.

[13]         Ibid vol I, bk I, ch 1, 135. This passage is cited in, eg, R & R Fazzolari Ltd v Parramatta City Council (2009) 237 CLR 603, [41] (French CJ).

[14]         R & R Fazzolari Ltd v Parramatta City Council (2009) 237 CLR 603, [41]. French CJ cited the following authorities: Rugby Joint Water Board v Shaw-Fox 1973 AC 202, 214 (Lord Pearson); Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259, [29].