Is the government truly the ‘paramount’ owner of land in Australia?

This is a post I found on the Peter Spencer support group at Agmates and the Author has agreed to its cross posting here. An interesting discussion has ensued over there and I am sure that some of you might become interested in getting involved. (Note the links he has given.)

By Alex Davidson

I often hear my betters sagely telling me that I don’t really have a leg to stand on over concerns that the government is taking something that doesn’t belong to it when it imposes controls upon the use of private land, because, they say, the government is really the ‘paramount owner’ of all land in Australia, and it is only through the government’s good grace that any of us have any ownership rights at all.

When I first came across this idea some years ago, I was quite shocked. So that means we are living in some sort of defacto communist society, not one based upon private property rights and freedom, as I had naively assumed?

Since then I have come to the conclusion that the whole concept of the government as paramount owner is a lot like an urban myth, repeated over and over again by collectivists, environmental fundamentalists, some judges, and the big government crowd, in the hope that it will eventually stick and be accepted as common law, if it isn’t already.

What I haven’t found is a reasoned argument to support it. Instead, it appears that the first claims of Australian governments to ‘own’ land in Australia are merely that – claims – and do not withstand the true test of ownership as arising from homesteading or contractual exchange. (For more on this point, see here, here, and here.)

Furthermore, whenever I go to publications on Australian property law, I invariably find they are written by authors who seem very sympathetic to the ideas of Marx & Proudhon in regard to property. Where are those who argue that property and ownership do not arise from government, and that taking property without consent is theft?

15 thoughts on “Is the government truly the ‘paramount’ owner of land in Australia?

  1. Is your author Alex entirely unaware Social Contract theory ? I’m not saying Locke, Hume & Rousseau had all the answers, but its pretty arrogant to say they lack any reasoned argument. Or does he think the Government is tasked with defending through authorized force the borders of a country, however lacks any authority over the territory internal to those borders? That it’s anarchy to internal control once the outsiders are repelled ?

    Also the jump from having government authority over the allocation and regulation of private society (via market organisation) to being a communist society is a rather absolutist approach. Surely when discussing such complex issues as the advance of individual freedom we can skip the black and white sermons.

  2. But this conflates what is “right” with what is reality.

    As I understand it, the Crown in the end does own all the land in Australia, such being the source of its eminent domain powers. For this reason compulsory acquisition is often called “resumption”, because the Crown is theoretically only “resuming” its ownership of land.

    It’s a ludicrous remnant of feudalism, is and against the principles of private property (such as homesteading, as you note), but it nevertheless exists and is frequently exercised by governments to build things like highways (and airports, to evoke memories of The Castle.)

    I haven’t studied law, so I’d be happy to be corrected on this, but I’m quite sure this is how it is.

  3. the whole concept of the government as paramount owner

    In relation to freehold property, this is a complete myth. It’s impliedly rejected in the Constitution through the just compensation clause. There’s room for doubt about whether the States are compelled to pay compensation, but there is no paramount right.

    But that leaves a large amount of land that’s not freehold. Houses in Canberra, for example, are on leasehold title. Most of the Western Division of NSW and the NT is also leased.

    Leased land is subject to the paramount claims of the owner. That’s why Native Title can apply to non-freehold land – it’s only extinguished on freehold.

  4. Andrew, when a person buys a property they purchase the right to occupy a piece of ground, not a social contract with any busybody who is arrogant enough to feel that they as non owners of that ground should have control of what happens within it. It may be argued that under the law as it stands the state has assumed the right to regulate a landholders activities, however in a moral society it is doubtful that such a right exists. The point is, the fact that an individual right has been usurped does not mean that such a right ceases to exist, it remains relevant even though violated by the state.

    The idea of a social contract is a nebulous one in that while many consider that such an entity should exist, few would agree on what the terms of such a contract should be. Its meaning is entirely in the mind of the proponent. A ‘fair go’ is probably more easily agreed on. Obviously your concept of a social contract would conflict with my feeling that in return for a small contribution, say 5% of my earnings, the state will provide defense, protection from those who would kill me, steal my property, etc and otherwise stay the hell out of my way and let me get on with my life.

    In the above post Alex did not mention communism as you seem to imply. The perception that the state has an unlimited right to regulate the peaceful activities of individuals and their right to enjoy the fruits of their labour is a collectivist one far from any known concept of liberty. We are, or should be a society of free individuals who consensually agree some limited form of government for our protection from real violation of our individual rights, not the society of the ants nest or bee hive where we only exist within a narrow social context decided by such a society.

  5. The government doesn’t own land except by brute force. Ownership of land morally is to do with homesteading. Which is not just showing up and making a claim over massive territory. But rather taking a small patch of land and intensively improving it.

    This is why it is moronic to talk about gifting land to people and its foolish to imagine that our resources sector works can be treated as if it all conforms to economic theory. Our resources are not being divied out with reference to homesteading principles far from it.

    An example of where this is relevant happened just a couple of days back. Barnaby Joyce proposed no more foreign government buying of our resources. He was quite right and fully in keeping with libertarian principles and good sense. But Laurie Oakes acted like he was a sort of space-alien who didn’t understand economics.

    Communists nationalising our gear is not free enterprise. But going more down to the nitty gritty then that, since our resources aren’t properly homesteaded, free enterprise dogma cannot apply to them.

    Under free enterprise assumptions these huge gas giveaways to the communists are proven to be good by the fact that they occurred. They must be good. Afterall the executives are up by 5.00am and their ties straightened. These are high performance blokes right? The free market wouldn’t put dropkicks in charge who would give away our gear for a song right?

    All of this is utter bullshit. The gas giveaways were and are a crying shame. And this is one of the most important neglected issues there is.

    The government doesn’t own the land. They cannot be giving it away or parceling it together in these appalling deep-pocket auctions presided over by merchants-of-debt and other rent-seekers.

  6. As Yobbo wrote, “The government has the guns. They own whatever they want to own.” I don’t think the compensation clause matters, David, because if the govt in the end can just take your property at will, how much can you be said to really “own” it?

    (I guess I should also make it clear I’m a different Alex than the author.)

  7. “In the above post Alex did not mention communism as you seem to imply”

    “So that means we are living in some sort of defacto communist society, not one based upon private property rights and freedom, as I had naively assumed?”

    “whenever I go to publications on Australian property law, I invariably find they are written by authors who seem very sympathetic to the ideas of Marx & Proudhon in regard to property. Where are those who argue that property and ownership do not arise from government, and that taking property without consent is theft?”

  8. Alex wrote “…It’s a ludicrous remnant of feudalism, is and against the principles of private property …”.

    Actually, neither is true. On the one hand, feudalism did acknowledge outright ownership (“allody”), it was just that in many countries – in post-Norman Conquest England, in particular – no actual allods were allowed to arise, other than those belonging to the Crown. On the other hand, in countries under the feudal system, even where no allods were sold by the Crown, the lesser (“precarious”) forms of tenure that were sold were still property, and it was no more against the principles of private property to hold, buy and sell them than, say, to hold, buy and sell a 99 year lease; the whole thing wasn’t being sold, but the lesser thing was still a thing to which principles of private property applied, and those principles weren’t being violated.

    Now, whether the land properly did belong to the Crown in the first place is another question (relating to whether the Crown as distinct from the monarch can “own” at all, among other things), but the Crown’s subsequent dealings with it are well within the framework of property. You just have to remember that it never truly and fully divested itself of the land but only of a partial parcel of rights relating to it. However, remembering the principle that “he who comes to [the court of] equity must come with clean hands”, ethically speaking any claim from homesteading etc. must acknowledge and accommodate any prior claims to bundles of other rights over the land, e.g. aboriginal hunting rights, and not assert a full title extinguishing any of those that have not been extinguished separately or it will fail fully (this includes, the claim may not date any basis through occupancy/prevention of reassertion of extinguished rights to a period when any such extinguished rights had not yet been extinguished, nor may the claim be supported by any improperly obtained extinguishing).

  9. Re comment 1 above: Yes, I am aware of the concept of a “Social Contract”, but I have difficulty understanding how it can be called a “contract” when one of the parties has neither consented to it, nor has any practical way of refusing to do so. Perhaps if each individual was offered a choice when they became an independent adult – “do you wish to pay X per year to the government in return for provision of Y services, or do you wish to opt out, fend for yourself, and pay as you go” – then maybe, but the idea that we are all born bound to some sort of social contract dreamed up by others, puts us far down the road to serfdom.

    Also, I don’t think the idea of “having government authority over the allocation and regulation of private society (via market organisation)” means anything other than a socialist / defacto-communist society. A “market organisation” cannot exist where there is government allocation and regulation. Mises explains this very thoroughly in “Human Action“, which I would strongly recommend to anyone seriously interesting in fully understanding this point.

    A point of clarification: It seems that in NSW at least, the registered proprietor is legally the “paramount” owner. Reference.

  10. All land actually belongs to the aborigines, who got it by constant tribal warfare with other tribes, but you’re not supposed to mention that in polite society. We’re all guilty, guilty, guilty, through inherited guilt, which is like original sin.
    Yes, the governments do resume land for what they state are public purposes, and they have always made this claim. What we need are sound philosophical arguments against that believe and practice. I still think that Co-Monarchism would be a good description- we should all be monarchs on our own lands. An Australian’s home should be his state.

  11. The idea that the Aborigines owned all the land in Australia prior to European settlement is based on a faulty understanding of how ownership comes about. It’s the same faulty understanding that leads governments to claim ownership over vast tracts of land that no-one has ever set foot on, let alone used for any purpose.

    True ownership in the sense useful to the goal of a free and prosperous society comes about through ‘homesteading’ – embordering and activity transforming property that was previously un-owned (then transferring contractually). Once this is understood, it becomes clear that the relatively small population of Aborigines present in Australia prior to European settlement could not possibly have owned more than a very small fraction of the country.

    There are sound philosophical arguments for this in the items I linked to in the original post above, although they might not be easy to understand without a some additional background reading.

  12. Alex, the aborigines believed that they owned, or were owned by, all the land in australia, and they fought wars over food resources. They would disagree with your concepts of property, I suspect. Certainly, they reacted as though we were taking their lands when westerners colonised Sydney.

  13. Yobbo wrote:”In the above post Alex did not mention communism as you seem to imply. The perception that the state has an unlimited right to regulate the peaceful activities of individuals and their right to enjoy the fruits of their labour is a collectivist one far from any known concept of liberty. We are, or should be a society of free individuals who consensually agree some limited form of government for our protection from real violation of our individual rights, not the society of the ants nest or bee hive where we only exist within a narrow social context decided by such a society.”

    It’s generally only libertarians who argue the government a priori to any discussion is limited in its reach. But this is little more than a debating trick to claim half of what is up for debate simply by defining it as out of the question. Its also hypothetical that doesn’t change the actual liberties enjoyed by individuals or restrictions that apply, and as you yourself noted, whatever the legal arguments about how far the reach government could has, with its power it would simply take it if wanted.

    For liberals, on the other hand, such as Mill, there is no obsession about if government could be absolute or not, rather its a much more sensible and pragmatic address to how it should be in relation to individuals. The government may indeed have the potential to be absolute, but through force of argument and involvement in the public sphere Liberalism has successfully managed to restrict it in most western societies for most of their modern existence.

    That’s generally the biggest difference I see between liberals and libertarians. Obviously they see society differently, but their end commitment to freedom is similar. Yet while liberals engage society so as to convince the population to support changes to the size of government as it exists, libertarians (not exclusively) seem to simply try and walk away from society when it fails to meet their philosophical/legal designs. Hence why its generally ignored when it should be much more popular & successful than it is. (And as a liberal I’d certainly welcome an increase in the libertarian voices in Australian public debate, but instead they seem to focus on hypothetical like this rather than pragmatic current change that could actually increase individual liberty.

  14. Jim
    Legally, there is no doctrine that the government is the paramount owner of land but there is a doctrine that the government has sovereignty. This amounts to the same thing in practice, as sovereignty means the right to make laws in respect of its subject territory and population.

    The NSW Native Vegetation Act makes it illegal to use farm land for certain (most productive) purposes without government permission. The Act transfers the right to make decisions to the Minister or his delegate, and he can delegate ‘Catchment Management Authorities’. So basically opinionated dickheads who live in your district and are opinionated and socialist enough to get onto the CMA get to decide what you can do with your property. Since use-rights are part of the equity, and equity is part of property, the effect is that the government takes your property without paying for it, which is what has happened to Mr Spencer.

    “So that means we are living in some sort of defacto communist society, not one based upon private property rights and freedom, as I had naively assumed?”

    Pretty much.

    “Where are those who argue that property and ownership do not arise from government, and that taking property without consent is theft?”

    Well they’re not in the High Court, which is the important thing.

    The Australian constitution provides that a government must pay ‘just terms’ for property it acquires. So if the Commonwealth had passed the Native Vegetation Act, it could not have evaded the requirement to pay just terms.

    So what the feds did was very devious. They undertook pursuant to the Kyoto Protocol to cut greenhouse emissions, and then decided as a matter of policy to do that by, in effect, confiscating farmers’ property. But they did it by getting the NSW government to do the dirty work, because the NSW government is not bound by the Australian Constitution to pay just terms. Then they gave the NSW their quid pro quo. That’s Spencer’s case in a nutshell as I understand it. He can’t sue the Feds because although they decided to do it, got the State to do it and must pay compensation, they didn’t actually do it. And he can’t sue the State because although they did it, they’re not liable to pay just terms. Stinks doesn’t it?

    The doctrine of sovereignty of Parliament, combined with the dominant western political orthodoxy of social democracy, in effect creates a socialist dictatorship.

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