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 propertyEveryone 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.
Since the BORA is effectively toothless, I doubt it would make a blind bit of difference. I suppose it would if we had a written constitution which allowed conflicting legislation to be voided.
ReplyDeleteI favour article 1, protocol 1 of the ECHR:
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."
it would be a fish hook though in the future if people wanted to push for the BORA to become supreme law, wouldn't it?
ReplyDeleteRich: Tell that to Paul Hopkinson - or Ahmed Zaoui, for that matter.
ReplyDeleteSpan: Not if the "reasonable limits" clause stays - and I don't really see that going. And I certainly don't have any problem with the government being forbidden from denying a person or class of persons the right to own property, or with being required to compensate if they take something for public use.
sorry, i was unclear - i didn't mean the phrasing you had suggested, i meant the words Copeland has used, in terms of creating problems if BORA became supreme law.
ReplyDeleteOwnership of property means nothing without the right to use and enjoy it. The alternative is the authoritarian corporate state model of private property in name only ala Rocco/Mussolini. Some would say that's what we have now.
ReplyDeleteMike: I think its already been established that I am not a propertarian absolutist. I'm quite happy to have the state prevent property owners from dumping costs on their neighbours, restrict certain activities to certain areas to promote efficient usage and make life generally more pleasant for all concerned, and have a process for discovering and balancing property rights (which BTW enshrines the right to make side deals, meaning that you can always compensate if you really want to do something). Property is a tool, and all of the above makes it a better tool, not a worse one.
ReplyDeleteSpan: I think the "reasonable limits" clause undermines Copeland's clause fairly thoroughly - but I'd still like to see it changed, just to be on the safe side.
ReplyDeleteIf the government passes a law saying they can take your house, then they take your house, it is not arbitrary - at least as far as the law is concerned.
ReplyDeleteInserting the word 'arbitrarily' makes it completely useless as a restriction on government.
In fact your suggested text makes it worse because people cannot currently be 'arbitrarily' deprived of their property even with compensation.
Hmm... you need to be careful when dismissing the BORA as a tool to alter what may be percieved as the plain meaning of legislation.
ReplyDeleteWhile it is true that the BORA cannot be used to strike down legislation which is inconsistent with it (this is clearly provided in s4 of the BORA), it has been quite potent in allowing the "reading down" of provisions which are inconsistent with it (and before people start complaining about judicial activism, remember that this is specifically mandated by the legislation itself - see section 6 of the BORA - "whenever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning").
While the interplay between ss 4, 5 and 6 is a bit convaluted (for a number of reasons, many of which are related to the drafting history of the BORA, which originally would have allowed other statutes to be struck down), the Courts have certainly interpreted it so that any interpretation of the other statute (in this case the RMA) which least infringes on the right in the BORA will be preferred (this occurs before the s5 "justified limitation" analysis takes place).
So, don't write off the practical effect of the Copeland clause (were it enacted) quite yet. As an interesting historical footnote, does anybody remember Owen Jennings' "New Zealand Bill of Rights (Property Rights) Amendment Bill 1997? Thought not. It aimed to do much the same thing - and met its fate in the same way this Bill probably will.
Anonymous:
ReplyDeleteNot sure if you were responding to me. I think Copeland's wording should definitely cause the courts to try to read down laws that puport to allow seizure of property (even income tax laws).
But the courts will not hold that government has taken property 'arbitrarily' then there is a statute authorizing the seizure.