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Australia is a Common Law
country, and property-owners have rights at law, particularly through the High
Court ruling by Mr Justice Kirby in September 1998. Property owners whose land
is held under Deeds in Fee Simple have the right to refuse to agree to the
takeover of their land for this or any other purpose.
Private Property Owners and
their Rights:
Property Owners’ Rights in
Australia are guaranteed in three ways by three different legal instruments, as
under…
(1)
Deeds in Fee
Simple
(2)
Magna Carta 1215, and
(3)
The Bill of Rights 1688/9
Fee Simple rights, particularly
the High Court ruling given by Mr Justice Kirby, in September, 1998, when he
made his decision by using an earlier High Court case (1923) when Mr Justice
Isaacs settled a dispute by confirming to the property owner in the case the
rights conferred on all property-owners under their Freehold Deeds in Fee
Simple.
Under the current laws in
Australia, both State and Federal, it is absolutely illegal for the Government
"to take what it wants", or indeed to dictate in any way what
property-owners must do or not do in regard to their lands held under Deeds in
Fee Simple so long as we retain our Common Law status under our legally
unchangeable Christian Monarchical Constitutions, which apply both State and
Federally.
Certain politicians are trying
illegally to change our unchangeable (except via
referendum) Federal Constitution, because they want to deny people the right to hold
private property under our Monarchical laws.
Evidence
of present protection of our rights through "Fee Simple"
In the High Court of Australia,
in a decision in the case The Commonwealth v New South Wales, Justice Isaacs
spoke of "fee simple" as follows…
"In
the language of the English law, the word fee signifies an estate of inheritance
as distinguished from a less estate… A fee simple is the most extensive in
quantum, and the most absolute in respect to the rights, which it confers, of
all estates known to the law. It confers, and since the beginning of legal
history it always has conferred, the lawful right to exercise over, upon, and in
respect to, the land, every act of ownership which can enter into the
imagination, including the right to commit unlimited waste; and, for all
practical purposes of ownership, it differs from the absolute dominion of a
chattel, in nothing except the physical indestructibility of its subject.
Besides these rights of ownership, a fee simple at the present day confers an
absolute right, both of alienation inter vivos and of devise by will."
Most non-leased properties in
Queensland are "Fee Simple", and therefore the majority of
property-owners have rights that override any Government Department or any
Municipal Council. Unfortunately many landowners are not aware of their rights
There are also other court rulings [such as Plenty v. Dillon in 1991] and
Parliamentary legislation that further confirm the fact that property-owners in
this country have the law entirely on their side.
PLENTY v. DILLON
(1991) 171 CLR 635 F.C. 91/004 - (HIGH COURT OF AUSTRALIA) states in
part...
a)
Consent to an entry is implied if the person enters for a lawful purpose.
In Robson v. Hallett (1967) 2 QB 939, Lord Parker C.J. said (at p 951):
"… the occupier of any dwelling-house gives implied licence to any member
of the public coming on his lawful business to come through the gate, up the
steps, and knock on the door of the house." This implied licence extends to
the driveway of a dwelling-house: Halliday. However, the licence may be
withdrawn by giving notice of its withdrawal.
A person who enters or remains on property after the withdrawal of the
licence is a trespasser. In Davis
v. Lisle (1936) 2 KB 434, police officers who had lawfully entered a garage for
the purpose of making enquiries were held to have become trespassers by
remaining in the garage after they were told by the proprietor to "get
outside".
b)
The general policy of the law is against government officials having
rights of entry on private property without the permission of the occupier, and
nothing concerned with the service of a summons gives any ground for creating a
new exception to the general rule that entry on property without the express or
implied consent of the occupier is a trespass.
c)
If the courts of common law do not uphold the rights of individuals by
granting effective remedies, they invite anarchy, for nothing breeds social
disorder as quickly as the sense of injustice which is apt to be generated by
the unlawful invasion of a person's rights, particularly when the invader is a
government official.
The Australian Constitution
incorporates the view that individual freedom should prevail alongside a limited
role for government. Section 51(xxxi) requires that if the government acquires
property from any State or person, it does so on just terms. Just terms have
been defined by the High Court as 'full and adequate compensation' where the
acquisition is a compulsory taking.
Section
51: (xxxi) The acquisition of property on just terms from any State or person
for any purpose in respect of which the Parliament has power to make laws:
However, it must be noted that
section 51 (xxxi) only applies to the Commonwealth. It does not bind the States
nor do the States have 'just compensation' clauses in their own constitutions.
For this reason, the argument
that section 109 of the Australian Constitution takes precedent over the
Queensland State Constitution is, I believe, unassailable.
Section
109. When a law of a State is inconsistent with a law of the Commonwealth, the
latter shall prevail, and the former shall, to the extent of the inconsistency,
be invalid.
Property rights are essential to
freedom, justice, peace and prosperity. They are basic rights. Despite common
law and constitutional protections, property rights are increasingly being
eroded by the modern regulatory state. The time has come to restore respect for
property rights for all landowners.
A TRESPASS
NOTICE is in fact a withdrawal notice to the common law '... implied licence
to any member of the public coming on his lawful business to come through the
gate, up the steps, and knock on the door of the house', and must be clearly
displayed at each access to a FEE SIMPLY owned property.
Property Rights in Australia
Trespass Notice
