COMMITMENTS to amend NSW legislation to provide stronger protection for property rights, including compensation where those rights are taken away, could act as a national catalyst to ensure the rights of landowners are properly recognised in Australia, according to a leading constitutional law expert.
Professor George Williams, a constitutional lawyer and academic, told the NSW Farmers Association conference this week that Australia was the only democratic country he knew of that did not provide adequate provision to compensate for a loss of property rights, with States able to acquire land without paying a cent for it.
Earlier that day, farmers were promised an elected Coalition Government in NSW would strengthen the laws in NSW to better recognise property rights – something Professor Williams believes could be the start of a chain-reaction to enact similar recognition for rights throughout Australia.
As farmers ramp up efforts to secure some national commitments on property rights ahead of this year's Federal election, Professor Williams believes there is a case for farmers and the broader community to push for a basic right that is taken for granted in other countries.
Speaking to Rural Press after his address, Professor Williams said he had seen no other examples of struggles by farmers living in democratic countries against their own governments in this area of property rights.
"There are always debates between landholders and Governments over the level of compensation, the appropriateness of regulation, but more often than not the landholders know they're going to be compensated but they don't want the Government to take their land in the first place," he said.
"That's a debate we should be having. I believe governments should be free to regulate and make decisions on behalf of the community that will on occasion deprive people of their property even where they don't want that to happen.
"But that person, having been forced into that situation, will have that fair compensation - but it's that last point that we're missing. In other countries that is not the debate, because you assume you're getting compensated.
"If you look around the world it's accepted that, where in a democratic society a Government takes your property against your will, the Government should provide you with fair compensation.
"That's a bedrock principle of a free and democratic society and it’s a principle we assume we have in Australia.
"Indeed we do have it for Commonwealth laws but it does not exist for any State in Australia. It's possible that any State can acquire your property without paying a cent in return.
"I would call that a flaw in the law, and a structural problem that goes back to 1901 and is beyond time to be fixed."
With the current debate about the need for a Bill of Rights in Australia, Professor Williams believes it would certainly provide the appropriate protection for property rights, but added it was not the only means of doing so.
He said changes to State laws or (unlikely) changes to the constitution through a referendum were also possible.
As a Federal election issue Professor Williams said he did not detect too much momentum on the property rights topic outside the farm sector.
"I think that's one of the big battles the farm sector needs to engage in because reform of this kind is for everyone," he said.
"It may be that people on the land are particularly concerned about it but you don't draft a provision just to protect those types of property rights, we're talking about the rights of miners, aboriginal people, landholders in the city…
"It should happen as a reform but it needs to be understood for the benefit of every person and I believe the support will be there, but it's just that people in these city constituencies aren't as aware of these problems as people on the land are."
Professor Williams said the long-running High Court challenge being mounted property rights campaigner and former hunger-striker, Peter Spencer, was on its last legs and in his view was unlikely to succeed.
"Once over, that's it in terms of a hearing. Once there's a decision, there are no further appeals," he said.
"I think he's really facing an uphill battle, earlier decisions of the High Court suggest he's very unlikely to win, and not only that but he's trying to argue a case for property rights in a State where they're not provided for."
But he said that won't mean an end to the campaign but more likely a fresh start.
"The resolution of this, where it's established that there are no property rights, should spur people on to force changes through the parliament."
He said positive actions by one State, as committed to by NSW opposition leader Barry O'Farrell this week, could be the catalyst for forcing legislative change across the country in the area of property rights protection.
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