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The limits to private ownership of property


Private Property sign

The concept of ownership is at the heart of any property regime. 18th century English jurist William Blackstone described ownership as ‘that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe’.

Australians share this individualistic understanding of ownership. If I own property – that is goods, land or intangible things such as shares in a company – then it is my right to decide how that property is used and by whom.

Recently the house of the French National Assembly passed laws under which supermarkets must donate to charity food that would otherwise be discarded. The laws are now before the French Senate. As reported in the London Telegraph in August last year, the law requires ‘supermarkets with 1000 square metres of floor space to give their “unsold but still consumable food products to at least one food charity”’. Penalties would apply for failure to comply.

Is a law that compels food donation by supermarkets consistent with our understanding of property ‘ownership’? Does it go too far in infringing the ownership rights of supermarket retailers? To answer these questions we must consider what it is that our property law system seeks to achieve.

One goal of property law is to protect individual rights to property. This concern is reflected in the views of Australian courts, in reference to compulsory acquisition. Take for instance the presumption applied by courts that parliament does not, in making laws, intend to interfere with private property rights.

The Australian High Court expounded this rule recently in R & R Fazzolari Pty Ltd v Parramatta City Council; Mac's Pty Ltd v Parramatta City Council (2009) 237 CLR 603. The courts’ view was that a statute be interpreted so as to authorise ‘the least interference with private property rights’.

As well, private property rights are one of the few rights expressly protected under the Australian Constitution. Readers may be familiar with the movie The Castle which looked at section s 51(xxxi) of the Constitution and the prohibition there on the acquisition of property on other than ‘just terms’.

Underpinning all this is respect for the individuals’ right to own property and to control how that property is used. Defining this in law helps to create an ordered society in relation to our material world. Property law, then, and its protection of ownership, performs a vital function.  

So back to mandatory food donation laws. Requiring a property owner (here a supermarket retailer) to ‘give away’ its property (here unsold perishable goods) seems at first glance at odds with the property law system. But at the heart of Australian property law, there are multiple interests to be served.

Broader societal interests have to be balanced alongside the need to protect individual property rights. Ask any property lawyer, and they will tell you that in legal systems, including Australia’s, limits have always been placed on ownership rights to achieve this balance.

As explained by the law professor Christie Weeramantry in An Invitation to the Law, the Roman civil law system recognised places set aside for public use (res publicae) and for the sacred (res sacrae).  Such places could not be the subject of private ownership rights. Today we also recognise places set aside for public enjoyment. In Victoria, crown land reserves may be managed by Committees of Management (of which there are over 1200). These committees manage land on behalf of the government operating under the Crown Land (Reserves) Act 1978.

English land law has also recognised limits to private ownership. Adverse possession law is a good example. It recognises that a person who possesses land for a relevant period of time and satisfies certain requirements may become the owner of that land. In this way, an existing owner’s rights may be defeated by a possessor of land (i.e. a squatter). The rationale of adverse possession is to ensure land is used, rather than left unused for significant periods of time (and to the deprivation of others who may be able to put the land to use).  Adverse possession is alive and well in Australian property law.

Planning regimes also restrict owners on how they develop and use their land. This is to ensure certain objectives are achieved such as protection of natural resources, or the sustainable use of land. Again these objectives operate as limits on individual property rights and reflect the interests of society as a whole.

We may conclude then that property law has always recognised broader societal interests. These may necessitate limits on individual rights of ownership.

In any debate about ownership (and limits to it) we should be considering the fundamental question: what is it that we want our system of property law to achieve? Alongside protecting private interests there sits broader societal interests to consider.

Mandatory food donation laws recognise a broader societal interest. That there are people in wealthy countries who still do not have enough to eat. Foodbank Australia, the largest hunger relief organisation in this country, states that: ‘[c]harties report that every month they are turning away almost 60,000 Australians seeking food relief due to lack of food and resources.’

Recognising when such interests justify limits on private property ownership is the matter for debate here.  As Weeramantry states in An Invitation to the Law, ‘property is an important area where major refashionings of legal concepts will be needed to match the social and economic demands of the future’. The French have recognised this with the push for innovative mandatory food donation laws.

Samuel TyrerSamuel Tyrer is a Melbourne based lawyer who teaches in the law program at Australian Catholic University.

'Private Property' sign image by Shutterstock. 


Topic tags: Samuel Tyrer, property, ownership, law, ethics, society



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Existing comments

An excellent article, Sam, which makes excellent points! There is another question which I think makes the inroad into private property even smaller. Most legal systems (Civil or Common law) agree that once you discard/abandon something you cease being its owner. Another person can come and collect the thing (and so own it). It is clear that the supermarket already intends to stop being the owner of the food (by abandoning it). There is no expropriation going on here. If that is true, then the only infringement on rights is demanding that the owner transfer ownership by gift rather than by abandonment. There are already plenty of restrictions which regulate how property may be transferred - and to whom. (Think car licences or conveyances of property). This would be just one more example.

Justin Glyn SJ | 07 July 2015  

Very interesting content and thought provoking. The ownership of farm land and famers right to stop coal steam gas destroying the water and land they own seems to be along the same lines as your article and also has a community angle as well.

Kathleen | 07 July 2015  

Good on the French! And it is good, at this time of Laudato Si’, to be reminded that we, as individuals, do not really have exclusive, perpetual ownership of anything on earth Our Common Home. The French seem to have a tradition about what to do with bounty than we do. Of course, giving what is left to the poor gleaning, is an old biblical custom. In 2000 Agnes Varda made a beautiful documentary about gleaning, called “The Gleaners and I” (“Les Glaneurs et La Glaneuse”). The then 74 year old Varda travelled around France with a hand-held digital camera, filming images. In the opening scenes we see Millet’s famous painting of The Gleaners and we move on to see women gleaning in the fields of France and people in cities picking over rubbish. Here are the opening scenes of the film. https://www.youtube.com/watch?v=aKgjjEJvMbM

Janet | 08 July 2015  

I agree with Janet's response which reminds us that we do not in fact have perpetual ownership of anything on earth. Along side protecting private interests I think the broader and in some cases, the more important societal interests, must also be equally protected.

John Whitehead | 08 July 2015  

Hello Samuel, thanks for bringing this to our attention and looking at it from both a legal and ethical viewpoint. Different kinds of property have different kinds of ownership. You mentioned the earth "our common home" and yet most of humanity cannot say they own any part of it. And so they are forced into needing charity to survive. This is really where the the ownership conversation needs to start. Our land ownership laws are built in to protect privilege rather than common rights. That the earth is our common home must be taken seriously. It belongs to the poorest just as much as it belongs to the richest. We need to look at ownership laws from the view of the poorest rather than always from the view of the richest.

Anne Schmid | 08 July 2015  

My favourite word is custodian rather than ownership. We are custodians for future generations of this beautiful little planet. Our time here is short and it is good to reflect on the legacy we leave, in every aspect of life.

Jane | 09 July 2015  

Justin, you make a good point about abandonment, and there being no expropriation of goods abandoned by a supermarket here (which I take as in favour of the argument for mandatory food donation laws). The other comments touch on the fact that the debate about limits to private ownership has much wider application than to mandatory food donation laws. In fact, wherever the law facilitates control of property by an individual or group we should be asking three fundamental questions: (1) what is it that we want our system of property law to achieve? (2) alongside protecting private interests, are there broader societal interests than need to be served through property law? (3) should those broader societal interests prevail over protecting private interests?

Samuel Tyrer | 09 July 2015  

Some people justify torture in extraordinary and specific circumstances. I have always liked the response, "What if it was you and you knew nothing?" The same theme is applicable here. What if it is your property and you are not willing to sell it to 'society'? Samuel Tyrer neatly summed up the issues involved bar the most crucial one. Who decides what is in society's best interests? Ultimately it must be the state and this is why I find his argument unsatisfactory. It places too much power and trust in the hands of the state. Given how all political parties are prone to sectional interests, we invite never ending trouble if we allow the state to take and give private property for 'societal interests'. Inevitably the state will start trying to bring about its ideal form of society, whilst trampling on the liberty of those who it deems to have too much or some vitally important asset. Finally, how can a donation be mandatory? Call it what it is - mandatory acquisition. Taking edible food that has been abandoned and giving it to the hungry sounds good in principle. I would have to wait though for the old law of unintended consequences before I was sure.

GJL | 10 July 2015  

A well thought out and justified article Sam, I enjoyed the read. I recall hearing about these laws being finalised whilst in France late last year. Look forward to hearing what you have to write in the future. Josh

Josh Tyrer | 12 July 2015  

Hi, my name is dianna , as far as the laws concerning private property, gillard our past premier has add a change to our property laws in 2015. Under agenda 21 private property is to be made illegal, this clause is under damage to climate change . So unfortunately the privilege of private property is challenged by and has been sign and agreed by our government. They will be abolishing the right to private property. You should look into it as it will be affecting every hard working Australian.

Dianna | 11 May 2020  

Thanks for sharing this post. I love reading it.

Best Mortgage Broker Australia | 18 May 2022  

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