Property rights and the BORA

So, having asked people to submit on Gordon Copeland's New Zealand Bill of Rights (Private Property Rights) Amendment Bill, what do I think of it? Generally, I am cautiously supportive, in that I support the bill's general thrust, but not some of the specifics.

The bill would amend the New Zealand Bill of Rights Act 1990 to add the following two clauses:

11A Right to own property

Everyone has the right to own property, whether alone or in association with others.

11B Right not to be arbitrarily deprived of property

No person is to be deprived of the use or enjoyment of that person's property without just compensation.

The first is uncontentious, effectively mirroring Article 17(1) of the Universal Declaration of Human Rights. The second is more troublesome. Article 17(2) of the UNDHR is a simple statement that "no one shall be arbitrarily deprived of his property" - which is a fairly good working principle. But Copeland's bill goes a lot further, barring deprivation of "use and enjoyment", not just ownership. Those unsure of exactly what this would mean only have to look at Copeland's initial press release:

"If you’re a farmer, and under the RMA, you’re told you can’t build your woolshed where you want, today you’re lumbered with the cost of putting it up half a mile down the road," Mr Copeland said.

"This Bill is about redressing the balance; it is about getting back to what private property ownership has always been about - the right to enjoy the full and free use of your land and to sleep soundly in your home at night."

In other words, this bill is aimed at gutting the RMA - not by legally overturning it, but by imposing essentially arbitrary costs on local bodies so that it cannot be enforced. But the principle of absolute property ownership Copeland seeks to enshrine in law doesn't just stop at allowing farmers to build barns; it also extends to things like building standards, workplace safety, product information and safety standards, standard weights and measures... all of these are a limitation on "use and enjoyment", and would thus require government compensation to be enforced. Worse, it would open the door for companies to sue the government for "expropriation of potential profits" if any policy (such as environmental regulations, or bans on manufacturing or exporting certain goods) could be claimed to stop them from making money.

Fortunately, Copeland's clause is unlikely to have the effect he wants. Section 5 of the BORA allows the rights and freedoms affirmed to be subject to

such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society

I think that any New Zealand court is likely to find that zoning laws, product safety standards, OSH regulations and standardised weights and measures are all "reasonable limits". But I expect farmers and other propertarian absolutists will waste a lot of money arguing otherwise.

But despite the fact that I think it would be ineffective, I do not think we should pass this clause into law. Instead, we should stick wih the wording of the UNDHR, slightly amended:

No one shall be arbitrarily deprived of their property without just compensation

I think that this captures the kiwi attitude towards property rights far more than Gordon Copeland's absolutist version does.