Private rights a public concern

Property rights are under assault on all fronts ...

PRIVATE property has long been recognised as the backbone of free societies.

Almost 200 years ago the Scottish philosopher David Hume argued that civil society could be defined as one in which the principles of "property, contract and consent" guide human interaction.

Many great philosophers and classical economists have emphasised the importance of defined and enforced private property rights for achieving economic prosperity and social harmony. Humans can prosper anywhere with well-defined and enforced property rights, but if these institutions are lacking any prosperity is likely to be short-lived at best.

Hundreds of millions of people still live in countries where there is little regard for private property rights, and even less of an understanding of how these rights contribute to their economic and political well-being. But even in countries with a history of support for property rights, of which Australia is one, there is complacency towards government erosion of them.

An issue that has raised few property rights concerns, notwithstanding its implications, is the introduction of plain packaging of cigarettes. This legislation, supported by both sides of politics, has largely destroyed the brands of the tobacco companies, which are highly valuable intellectual property.

The legislation was challenged in the High Court, but it decided that the constitution allowed the government to destroy property values without paying compensation as long as the government made no pecuniary gain from it.

Thus a future government is free to impose obligations on land owners that reduce or remove entirely the value of their property, without paying compensation, provided it does not benefit itself.

Another private property issue attracting little attention is the ever-expanding range of rules governing what is and is not permitted on certain property.

An excellent example is smoking. Clubs, pubs and restaurants, all privately owned property, are denied the right to allow smoking on their premises. A property owner who decided it might be commercially attractive to allow smoking and was happy to erect signs warning patrons so they could choose whether to enter, would be prosecuted.

A similar tendency is now being seen with alcohol. Governments are increasingly dictating when privately owned premises may serve alcohol, to whom, and how much.

There are examples in relation to the seizure of property from supposed criminals, with a growing tendency to dispense with the need to prove criminality. Being out of favour with the police or a relevant minister is enough.

A property rights issue that occasionally raise hackles is the rezoning of land, either without compensation or with compensation that is manifestly inadequate. This is often accompanied by a whiff of corruption as subsequent owners appear to be the chief beneficiaries. The Obeid and McDonald cases in NSW have elements of this.

One of the few property rights issues to attract popular attention, particularly in the agricultural community, is bans on land clearing. Arising from the Howard government’s determination to meet the greenhouse gas reduction targets of the Kyoto Protocol, the states were coerced into passing laws prohibiting land clearing. At the time the Commonwealth thought this was the only way to avoid paying compensation for the loss of property values.

The effect has been widespread hardship, with properties unable to be cleared of regrowth and land seriously reduced in value.

In each of these examples, and there are many more, property rights have been eroded by government action. Contrary to being well-defined, certain and enforceable, they show rights are vulnerable to capricious regulatory intervention. In every case, prosperity and social harmony are adversely affected.

While some might argue each case by itself is relatively minor and that property rights in general are not under assault, each tolerance of minor encroachments makes it easier for governments to go further next time. Our liberties may be destroyed in baby steps rather than giant leaps, but the direction is inexorable.

Those who believe in property rights, and I suspect that is most Australians, ought to be concerned whenever governments seek to limit them.

It is not necessary to approve of smoking or excessive drinking to support the rights of property owners to decide what to allow on their own property.

It is not necessary to approve of outlaw motorcycle gangs or youngsters who engage in burnouts to disapprove of the seizure of their property in the absence of a conviction.

It is not necessary to be on the losing side before objecting to property being rezoned that deprives its owners of value.

And it is not necessary to own a farm on which regrowth is rampant to agree that the land clearing laws are an appalling denial of the rights of property owners to pursue their own prosperity.

But it might help if those who have an interest in any of these recognise the fact that the problem extends beyond their particular issue.

Property rights are under assault on all fronts, and the only way to prevent loss on a large scale is to fight each and every battle as if it is your own.

  • David Leyonhjelm has been an agribusiness consultant for 25 years and was recently elected to the Senate for the Liberal Democrats. He may be contacted at
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    David Leyonhjelm

    David Leyonhjelm

    has worked in agribusiness for 30 years and is a Senator for NSW representing the Liberal Democrats.
    Date: Newest first | Oldest first


    looking after home
    21/10/2013 6:15:16 AM

    This article is more about intellectual property rights, which have effectively destroyed by allowing the word Australian to be used by foreign interests to sell goods on our behalf.where there is little benefit to Australian interests. Property rights are even more important when it is land that produces long term sustainable wealth for a nation. To sell land to foreign countries or the rights to lease without control over the practices on he land and use of resources which might impact other landholders is a short term fix for cash grabbing governments.
    John Michelmore
    21/10/2013 6:34:03 AM

    David, Well done!! Unfortunatley it is going to take much more than your excellent article here. As every day goes by the removal of property rights with zero compensation increases in pace. We have the Venezualan example to look forward too, where the property owner lives in a hovel and his property is rented (controlled rent) to tenants and the Gov. sets the rent at a pittance. The terms used to remove ownership that every property owner needs to cringe at are as follows:- social licence, community expectations, stakeholders, industry consultation.
    21/10/2013 7:42:31 AM

    Thank you for a well worded article. I am a Queenslander who is very concerned about the bikie laws, even though I don't run in bikie circles. I am very concerned about vegetation management. Labor/Greens preference deals in Queensland resulted in the VMA which did not meet the United Nations Covenant on Civil and Political Rights. Newman has since removed some of the more egregious sections of this Act. More here: iles/blogs/urban-greens-violate-c ivil-rights
    21/10/2013 11:27:03 AM

    I'm in full agreement David. I hope you will take it up as an issue when your tenure in the Senate begins.
    21/10/2013 12:12:09 PM

    Ultimately you have to see who the owner of the land is. In Australia that is the crown, ie. The Queen of England, who owns all of the land of Australia. No matter what they would like to believe, in legal terms, Australians who own freehold land do not have absolute ownership of it at all. What they have is fee simple title which is only a representation of absolute ownership. Not the same as absolute ownership as they still pay rates and taxes to the absolute owner. Libertarians need to address this by supporting a Republic and to abolish of the monarchy.
    21/10/2013 1:01:29 PM

    Sorry "looking after home" I'm confused !! So its good to confer property rights on something like brand Australia and allow the owners free and unencumbered ability to maximize its value but when it comes to "land" its not the same thing. What if the owner did all the things that YOU don't like or approve of, but were Australians ! Are you then saying they should have their property rights removed? And who says you are right ? Who gets to be the judge ? This foreign thing I also don't get. If you are right then why is an Australian bad owner better than a foreign one ???
    21/10/2013 2:36:00 PM

    Australia's problem is simply we are on easy street and it is so easy to divide and conquer... The old saying "first they came for xxx, but I was not xxx so i did not speak up" rings true...
    21/10/2013 2:36:10 PM

    why is this joker still writing. He is a Senator elect. Let him take his money and run.
    Dave Wane
    21/10/2013 5:05:43 PM

    Of course, I totally agree with your excellent article. Roxon from the Labor Socialists put up the legislation, and as I recall, the Abbott Coalition, in a bid to appear "not negative" sheepishly agreed to support it. As for the High Court's interpretation: I very much doubt that any of the authors of the Australian Constitution would have intended for THAT interpretation. Imagine if any well-known brand at the beginning of last century was told they could not display their logo/brand on their product - any product? The "Founding Fathers" would have surely sought to amend the constitution.
    21/10/2013 7:22:57 PM

    The property rights issue in regards to the current Coal Seam Gas "invasion" is worthy of comment.
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    Agribuzz with David LeyonhjelmCommentary, news and analysis with agribusiness consultant David Leyonhjelm. Email David at


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