Property rights

What property rights?

Australians have never been less free to do with their property what they wish. Up until now, farmers have been enemy number 1 for those attacking our property rights (here is a previous FreedomWatch post about a WA agricultural body seeking to reverse the trend against farmers using their land).

However, the battle for property rights has come to the inner city. Richmond’s iconic Corner Hotel has been a live music institution in Melbourne for decades. But plans to build apartments nearby are threatening that status. Current planning laws dictate that residential developments built near established live music venues take precedence in noise disputes. So even if a venue was there first, it can be forced to turn the music down, close early, pay for soundproofing or face fines on the basis of complaints from residents.

Property rights are now so meaningless in Australia that individuals can have no certainty over what they will and won’t be able to do on their own property if someone moves in down the road.

Not to mention the impact on the live music scene.

The full story is here.

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Retrospective laws undermine the rule of law

One of the most basic principles of the rule of law is that laws are applied prospectively. The importance of this idea is obvious: you can only comply with laws that actually exist. If the parliament passes a law tomorrow, how could you possibly be expected to abide by that law today?

But today, Assistant Treasurer David Bradbury introduced a bill to parliament that proposes to apply changes to the law commencing from a date in the past. The Tax Laws Amendment (Countering Avoidance and Multinational Profit Shifting) Bill 2013 contains provisions that will apply from 16 November 2012.

Bradbury has stated that the law is being introduced in an attempt to ensure that large companies are paying their fair share:

With governments around the world targeting big business in a bid to strengthen their budgets, Assistant Treasurer David Bradbury described the changes as “key weapons in the fight against base erosion and profit-shifting”.

“These reforms will help to protect the integrity of Australia’s income tax system and make sure that large taxpayers pay their fair share,” Mr Bradbury said.

Bradbury obviously believes that the rule of law cuts off once a certain level of income is achieved. Apparently that threshold is around the $1 billion mark for multinational companies because that’s where most of these changes will kick in. Of course, that’s not how the rule of law works. But the Gillard government will try to spin it that way to hide the fact that this is a transparent attempt to plug gaping revenue holes.

This bill has no place in a country that values the rule of law.

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No, Senator Xenophon, this is not about free speech

There are many real threats to freedom of speech in Australia in 2013.

But South Australian Independent Senator Nick Xenophon sees threats to freedom of speech where there are none. He believes that broadcasters should have no choice over whether they run political ads during election campaigns – anyone who can pay the going rate is entitled to see their ad aired on their broadcaster of choice. The proposal would effectively extend the current laws that give political parties ‘equal time’ during election campaigns.

In the coming fortnight Senator Xenophon has promised to introduce a bill that would force broadcasters to run all political advertisements:

“This is fundamentally an issue of free speech,” Senator Xenophon said. ”If the major parties are as committed to free speech as they claim, they must support this bill.”

Xenophon is very confused.

This is fundamentally not an issue of free speech. Freedom of speech doesn’t entitle you to the use of broadcasters’ property to air your views. It is threatened only when the state seeks to impose restrictions on speech. There are plenty of free speech issues that Xenophon could commit himself to. This isn’t one of them.

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The priorities of the AHRC

The number of times a term is mentioned on an organisation’s website can be a crude measure of their priorities. But when the gap is so large, it’s hard to ignore.

The Australian Human Rights Commission is a 100% taxpayer-funded organisation. One of its tasks is to advocate on behalf of Australians’ human rights.

But as Simon Breheny argued in The Australian recently, the AHRC really only advocates for the human rights they like – such as the right to not be discriminated against – over human rights they are less enthusiastic about, like freedom of speech and property rights.

Well, now we can quantify that gap:

  • Number of times “discrimination” is mentioned on the AHRC website: 12,200
  • Number of times “freedom of speech is mentioned: 423 (“free speech” is mentioned 226 times)
  • Number of times “property rights” is mentioned: 370
  • Number of times “right to silence” is mentioned: 41
  • Number of times “presumption of innocence” is mentioned: 80

The AHRC is not a human rights agency at all. At best it is an anti-discrimination agency dressed up in the rhetoric of human rights. At worst it is a taxpayer-funded left-wing lobby group. The AHRC only selectively defends the rights they like. It should be abolished.

UPDATE: Yet more evidence of the AHRC’s warped priorities, as we pointed out in our Hey email today.

According to the Human Rights Commission, these are the four biggest human rights issues in the 2013 federal election. No mention of freedom of speech, or laws which remove the right to silence or undermine the presumption of innocence.

And under the section of their website entitled “freedom” these are the posts that appear, along with a very strange definition of freedom.

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Support grows for IPA call to abolish Australian Human Rights Commission

Bernard Keane has an article on Crikey today, supporting the IPA’s call for the abolition of the Australian Human Rights Commission:

It’s the Commission’s advocacy role that is the real problem. In exercising its tribunal function in handling complaints, the Commission is bound by statute: Parliament has identified the rights it wants the Commission to protect. In its advocacy role, the Commission has a much freer hand.

This necessarily means a degree of selectivity. The Commission’s establishing act makes the International Covenant on Civil and Political Rights the core of the human rights it intended to protect and promote. That document lists dozens of rights, some of which potentially directly contradict others: the right to freedom of expression clearly has the potential to breach both the right against arbitrary interference with privacy, and the Covenant’s demand that “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law”.

The most obvious outcome of this advocacy freedom is that the Commission bluntly states on its website that “securing an Australian charter of rights” is part of its mission. This is a blatantly anti-democratic position: both major parties have long and repeatedly made it clear they do not support a charter of rights. Charter advocates may not like it, but the clear view of the overwhelming majority of elected officials is against a charter of rights. Yet the Commission is spending taxpayers’ money advocating it.

Moreover, as the IPA notes, the Commission does indeed seem to regard free speech as a lesser priority than other rights. The Commission has little to say in defence of free speech — and when it does it’s not pretty. In 2010 when the Commission declared that it had jurisdiction over the entire internet, telling the owner of a website hosted in the United States, responsible for some racist, juvenile material about Australian Aboriginal people, that theRacial Discrimination Act actually applied offshore.

And the Commission supported the government’s exposure draft of the Human Rights and Anti-Discrimination Bill 2012, endorsing the extension of the current, outrageous ban on speech that “offends” or “insults” to other forms of discrimination, although since then Commission president Gillian Triggs seems to have changed her mind.

But by formally endorsing the bill, the Commission entirely abrogated its role as a human rights watchdog on government legislation.

Our press release calling for the Australian Human Rights Commission to be abolished can be found here.

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The taxpayer-funded human rights lobby

My article in The Australian today is on the network of human rights lobbyists who attack, rather than protect, our most fundamental human rights:

Human rights organisations lobby for government favours as much as businesses do. The only difference is that the public is suspicious of crony capitalism, while the human rights lobby campaigns behind a veil of goodwill.

The relationship is mutually beneficial: the government gets its policies legitimised by support from so-called human rights experts and the human rights lobby gets to expand its empire. Never mind that these experts are funded, if not directly appointed, by the government itself.

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WA farmers stand up for property rights

A representative body for farmers in Western Australia is seeking an overhaul of laws that strip away property rights:

Peak industry group WAFarmers wants the State Government to compensate farmers financially in cases where restrictions have been placed on land clearing. It also wants legislation to allow farmers to sell off parcels of bush to environmentally minded individuals and organisations. WAFarmers president Dale Park said yesterday it was time for the conservation movement to put its “money where its mouth is” and pay for the protection of thousands of hectares of bush on privately owned farmland.

Mr Park goes on to explain:

“What we want the Government to do is recognise that they have taken our land rights away from us and work out how they are going to compensate us for losing those rights,” Mr Park said. “Society and green groups have decided that we are not allowed to clear this land so let society put its money where its mouth is. If it is so important, the Government should compensate us for it or let us subdivide it so people in the city can buy it because it is of no use to us.”

The proposal is eminently reasonable. But property rights have been eroded significantly over the years, not least of which by native vegetation laws. Indeed, things are so bad for property rights in Australia that this sensible proposal – the simple idea that people have a right to use their own land as they see fit – will be painted by some as being “radical.” No doubt this is partly due to a failure to understand that farmers tend to be exceptional conservationists.

Whatever the reason, we all have much to gain from restoring property rights and giving farmers the power to make decisions regarding their own land.

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Farcical illegal logging Bill reaches the Senate

Environmental non-government organisations have had the forestry industry in their sights for as long as one has existed. Most recently, consultations with these groups has led to the introduction of the Illegal Logging Prohibition Bill 2012, which is currently being considered by Commonwealth lawmakers:

The Illegal Logging Prohibition Bill has passed the House of Representatives and is currently before the Senate. It prohibits the importation of anything containing illegally logged timber (including paper) and the processing of illegally harvested, domestically grown raw logs. It also requires importers of regulated timber products and processors of raw logs to meet due diligence requirements as to their legality.

The proposed law is a farce.

The most glaring problem with the Bill is the way it defines “illegal logging” by reference to the laws of jurisdictions outside Australia. The new law would require Australian timber importers and saw millers to ensure that timber products were all compliant with a huge range of foreign and international laws relating to illegal logging. Compliance must be proved by importers, which reverses the onus of proof – importers are presumed to be guilty until they prove themselves to be innocent. Penalties can even apply in cases where an importer has no knowledge of a contravention committed by another party further up the supply chain.

And the Bill captures much more than illegal logging in any direct sense. Any importer of “timber products” is caught. The definition of timber products is so broad as to capture anything containing timber. This includes plywood, furniture, picture frames and even paper and cardboard.

In negotiating the content of this Bill, the government appears to have treated NGOs as impartial stakeholders. The timber industry and timber importers on the other hand have been viewed with great suspicion.

The result is a Bill that pays scant regard to the rule of law. The government seems blind to the devastating effect this law will have. Let’s hope this nonsense stops with the Senate.

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Property rights trumped again

A recent court case in Queensland highlights a disturbing trend: the ‘right’ not to be discriminated against trumps all other rights. A motel in the mining town of Moranbah this week lost their case in the Queensland Civil and Administrative Tribunal against a sex worker who they had banned from renting a room. The tribunal found that their ban contravened Queensland’s Anti-Discrimination Act.

The case was extensively previewed in an article in the Weekend Australian Magazine in June ($):

One of the towns that Karlaa most likes to visit is Moranbah. By her own reckoning she’s stayed at every one of its six motels but preferred the Drover’s Rest, where she stayed 17 times in two years until June 29, 2010 – when the rug was abruptly pulled from under her business.

According to Karlaa, that day started like any other: she saw a few early morning clients and then “cleaned the room thoroughly. I don’t want to give anyone an excuse to throw me out.” Shortly before 10am she went to settle her account but, according to documents lodged with the Queensland Civil and Administrative Tribunal, she got a frosty reception. “The owner, Joan Hartley, she told me next time I came to Moranbah I’d have to stay somewhere else,” Karlaa says. “When I asked her, ‘Why’s that?’ she said, ‘We think you’re a sex worker’ and the way she said it, she was judging me. She gave me the impression that what I do, it’s disgusting, it’s filth; it was ‘we don’t want that in our backyard’.”

Karlaa says she told Hartley she was being “discriminated against on the basis of lawful sexual activity”, to which Hartley responded, “So sue me”. So Karlaa did. She lodged a complaint with the tribunal, saying she was “asked unnecessary questions about being a sex worker and that she was overcharged because of her status as a sex worker”. But her complaint was dismissed last October on what might be called a technicality: the Drover’s Rest motel is licensed to serve alcohol and under the terms of Queensland’s Liquor Act the owners aren’t allowed to let people run businesses from the rooms. Karlaa has appealed on the grounds that many people use the telephone or the internet for business while staying in a motel room, and that using the bed can’t be that different. The appeal is due to be held next month.

But shouldn’t the owners of a business be free to choose who they offer their services too? Particularly if they are worried, as the owners appear to be in this case, that someone is engaging in an activity on their premises that could damage their business?

The concept of property rights dictates that no one should be forced to allow activity on their property that they do not want to have take place. The concept of freedom of contract dictates that  business owners should be able insist that reasonable conditions are met in exchange for their services – like that their rooms aren’t used to run other businesses. And freedom of association means that you should never have to associate with someone you don’t want to. For example, women should be free to exercise in a women-only gym (like Fernwood), and for that to be possible, the owners of the gym should be free to ban men from the premises.

But these rights seem to be easily swept away as soon as an accusation of discrimination is made – just as we have seen with freedom of speech and the Andrew Bolt case.

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Human rights lawyer vs freedom of association

There has been a call this week for Queensland to strengthen its anti-discrimination laws.

The attack on the current regime has come after a tattooed man was refused entry to a Gold Coast nightclub.

The man says a number of clubs have refused him entry due to a ‘no visible tattoos’ policy.

Human rights lawyer Ron Behlau, of Nyst Lawyers, said these polices were “inherently discriminatory” and called for an overhaul.

But calls such as these are in direct opposition to the right of individuals to freely associate with a community of people who share their values and preferences.

It should be the right of any private business owner to decide for themselves who their customers will be. No individual should have the right to use the power of the state to force their patronage on any business.

To do anything else is an affront to freedom of association.

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