Lost Property: Home In Deed But Not In Fact

Debates over public policy rarely pivot on philosophical questions. But here’s one: what does it actually mean to “own” your property?
NSW farmer Peter Spencer is coming up to the 50th day of his hunger strike. Spencer is arguing that he should be adequately compensated for native vegetation regulations that prevent his chopping down trees on his land.
Fair enough. Compensation for loss of property rights is part of the Commonwealth constitution.
But native vegetation laws are state laws, and state constitutions don’t require state governments to pay just compensation for property they take. Spencer claims these laws were enacted at the behest of the Federal Government, allowing Canberra to meet its Kyoto greenhouse emissions targets without the hassle of paying those who own the native vegetation carbon sinks. (Constitutional limitations on government power must be pretty annoying.)
Certainly, the nuances of regulations governing the clearing of native vegetation sound dull, but they’re actually very important. A mountain of regulation imposed by all three levels of government is eroding one of our basic human rights – the right to own property.
This might seem a bit counter-intuitive. The Government hasn’t literally taken Spencer’s property away. He hasn’t been kicked off: he’s still allowed to wander his land at his leisure. He still holds the title. But his right to use the land has definitely been taken. Put it this way: what if the Government told you that you could keep your house, but couldn’t live in it? Sure, you’d technically still own it, but you bought that house because you thought it would be a nice place to sleep. You don’t really “own” it in any useful sense.
It’s the same with farmland. Spencer may not have been physically deprived of his land, but what’s the point if he’s not allowed to farm it? And if Spencer is not compensated for this regulatory taking, how is it much different from legalised theft? Spencer’s is not an isolated problem. In urban areas, planning regulations and heritage restrictions are increasingly onerous as state and local governments try to micro-manage the “character” of suburbs.
Karl Marx called the right to property “the right of selfishness”, and property rights are believed by many to be a synonym for individualistic greed. Sounds like greed, looks like greed, sure – but it’s not greed. More than anything else, property rights are essential for prosperity and growth. Nowhere is this clearer than in the developing world. Influential Peruvian economist Hernando de Soto has found that where property rights are not respected or recognised by governments and bureaucracies, countries are poor. After all, if you can’t demonstrate you have assets to your name, it’s very hard to get a loan to start a business.
Property rights are the foundation of social mobility. Indeed, property is pretty much just another word for accumulated savings. Savings help us up the economic ladder. By contrast, a society that regularly violates property rights is an unstable society, and one where the road to personal advancement is blocked.
The right to property is so important it has long been recognised as one of our basic human rights, like free speech or the right to a fair trial. The 17th century philosopher John Locke said we had three fundamental rights: life, liberty, and “estate” – property.
But in the late 20th century, the right to property became the mistreated stepchild of human rights law. Related, but unloved.
In 1948, property rights got their own article in the United Nations’ Universal Declaration of Human Rights (“No one shall be arbitrarily deprived of his property”). But when they finally got around to turning the declaration into a legally binding commitment in 1966, property was thought to be passe, like Dean Martin and the patriarchy: neither the International Covenant on Civil and Political Rights nor the International Covenant on Economic, Social and Cultural Rights mention property rights.
The European Convention of Human Rights says “no one shall be deprived of his possessions except in the public interest”. The phrase “public interest” is meaningless. What government has ever thought it wasn’t acting in the public interest? The 2006 Victorian Charter of Rights says no one’s property can be taken “except in accordance with law” – not much of a defence from eager legislators.
Peter Spencer’s hunger strike in defence of his human right to property is drastic and dangerous. We can only hope it won’t be tragic. But his desperation must make us rethink our attitude towards this essential, but increasingly neglected, human right.