The Castle, but who is the king?
- By Salvatore Scevola
- Aug 21, 2015
- 7 min read
Daryl Kerrigan (Michael Caton) the father figure in the fictitious Australian film of 1997 The Castle faced and won a David and Goliath battle against a government consortium that was seeking to acquire their family home, their Castle on ‘other than just terms’. The film is a feel good movie designed to underline the Australian sense of ‘fair go’ showing that no matter how mighty the government thinks it is, the Constitution above all protects the private property rights of its citizens. This is highlighted in the film making emphasis of s51(xxxi) of the Australian Constitution known in legal circles as a ‘Constitutional Guarantee’. Its what the Federal government uses as its ‘head of powers’ to lawfully acquire private property, but only on ‘just terms’ as 51(xxxi) stipulates. The last few sentences of the film uttered by that legend the late Bud Tingwell (playing Lawrence Hammill QC) winning the High Court matter of Kerrigan Anors versus Commonwealth Airports Corporation, brings home the anguish that must be experienced by those threatened with dispossessed of all that makes a house a home. He says:
“They want to pay for the house, but they’re taking more than that, so much more.”
The script writers of the Castle screenwriting team comprising Rob Sitch, Santo Cilauro, Tom Gleisner and Jane Kennedy of Working Dog Productions cut deeper with Laurie Hammill QC telling the High Court judges in the movie:
“You can acquire a house, but you can’t acquire a home. Because a home is not built of bricks and mortar but of love and memories. You can’t pay for it and you’re just short changing people if you try.”
The movie makes us feel that this is the way it all happens in real life, but reality is nothing could be further than the brutal truth. Look no further than a couple cases that have recently been decided in the Federal Court of Australia. One is that of June & Peter Esposito and their class claimants versus all three tiers of government in Australia including a government ‘front’ organisation the FNPW (CTH, State of NSW, Shoalhaven City Council & the ‘Foundation for National Parks & Wildlife FNPW). The other case is that of Mr. Peter Spencer versus the Commonwealth & the State of NSW. The former are referred to as ‘Heritage Estate Landowners’ and the later as ‘Spencer” both cases are of immense importance for understanding the ever devolving status of private property rights in Australia no thanks to our Federal governments and the current High Court bench.
Much hyperbole surrounded the significance of the High Court’s recent decision of JT International v The Commonwealth otherwise known as the “Plain Packaging Case” [2012] it centred around how the Commonwealth government took away the cigarettes company’s trademarks (on their packaging) to replace them with graphic and disgusting health warnings. These legislative changes were introduced by the former Gillard gov’t and were supposedly all done in the broader “public interest”. The Federal Attorney General (at the time) Nicola Roxen was paraded internationally as a ‘trail blazer’ holding big tobacco companies to task. You many ask at this juncture what do cigarette companies and their rights or otherwise on packaging have to do with the private property rights of individuals? Good question, well a lot actually. The Plain Packaging case has been used against Esposito and Spencer (successfully) effectively to “take” rights away from landowners but not have the effect of an acquisition (for the purposes of compensation for affectation). I bet all those who were in favour of the legislation against big tobacco (I was one) would be appalled to learn that this ‘precedent’ is now being used to diminish peoples freehold property rights in favour of big government and ever expanding National Parks.
To better understand what the High Court said in JT International [2012] HCA 43 here is a little snippet from the online summary:
“A majority of the Court held that to engage s 51(xxxi) an acquisition must involve the accrual to some person of a proprietary benefit or interest. Although the Act regulated the plaintiffs' intellectual property rights and imposed controls on the packaging and presentation of tobacco products, it did not confer a proprietary benefit or interest on the Commonwealth or any other person. As a result, neither the Commonwealth nor any other person acquired any property and s 51(xxxi) was not engaged."
Because the Court had decided in many other matters over the last 100 odd years that ‘property’ for the meaning of s51(xxxi) encompasses ‘bundle of rights’ it is here where our government is MISUSING the JT International precedent and unfortunately the High Court is seen in lock step having decided another important case ICM Agriculture citing JT.
Mr and Mrs Esposito purchased a freehold residential block of land in Jervis Bay in 1989, as did some 1133 other citizens. This land they purchased was part of a DRAFT LEP with the Shoalhaven City Council to be rezoned RESIDENTIAL, it was and still is currently a totally inconsistent Rural zoning whilst landowners are paying “residential non-urban” rates for the last 25 years totalling over $20 million dollars. All this without one bin having ever been collected or one street cleaned as there are none.
For the ensuing 10 years the Esposito’s and their fellow landowners (now the Shoalhaven Landowners Association or SLA) fought the Council and State Government culminating in a full blown Commission of Inquiry (COI) in 1999 under NSW Planning law. It (the COI) concluded at least 730 of these 1134 blocks should be rezoned residential and the remaining 404 blocks set aside for a “wildlife corridor”. NO viable recommendation for how to compensate these excluded landowners was ever devised. For the following ten years the State government, Shoalhaven City Council (SCC) and now the Commonwealth dragged its feet ‘attempting to rezone’ this land. It all comes to a head in 2009 when the then Minister of the Environment Peter Garrett decides under the Federal EPBC Act ss130,131 to REFUSE the rezoning on the grounds that the public works and infrastructure required for the residential rezoning would pose “unacceptable impacts” to the nearby (4.4klm) Commonwealth owned Booderee National Park. Since that shocking decision the landowners were left with land that they could no longer use in any practical way, they could not camp on their land and they were prohibited from carrying out ANY activities ON THEIR OWN LAND. It was now being said by the Council and the Commonwealth that this land is “ecologically significant” for ANY activities and should be subsumed into the State owned adjoining Jervis Bay National Park JBNP.
The fact that there exists laws in NSW and the Commonwealth to ensure that when the government needs your land they MUST pay a fair and reasonable amount (Land Acquisition ‘just terms’ Act 1991 NSW s50 & National Parks & Wildlife Act 1974 ss145,146, CTH Land Acquisitions Act 1989 CTH, s52,57 & Constitution s51(31)) all of which have been circumvented to have the Foundation for National Parks & Wildlife FNPW acquire monies given to the State government from the Commonwealth to offer each landowner a ‘fixed rate’ offer of $5,000 per residential block. Most paid triple that 25+ years ago with an additional $15,000 each in residential non-urban rates, meanwhile the NSW Valuer General re-valued all of the Heritage estate lands from highs of $25,000 to just $500 overnight. This ‘offer’ of $5,000 was made by the FNPW to landowners in 2012 on a “take it or leave it” basis, reminding them that if they didn’t take it they would ultimately “get nothing for their land” and that the offer was ten times what the Valuer General now valued the land at.
To say that there is a stinking dead rat in here is an understatement.
The Esposito’s and their 300 odd class claimants launched a legal challenge to this “mafia style” resumption of their land and a five day hearing was heard in the Federal Court in October of 2013 before Justice Lindsay Foster. After hearing all the damning evidence his Honour returned judgment in favour of the Respondents (the CTH, State, SCC and the FNPW) sighting that the offer of $5,000 “did not represent, unjust terms” and that there was no breach of the Constitution. His Honour remarked in his judgment that the Cth officers involved in the case (fiasco) were “careful not to breach the Constitutional Guarantee, but they should hardly be criticized for that”.
The Judgements in Esposito 1 & 2 in full can be read here:
His Honour’s judgment (Foster J's) was comprehensively appealed to a Full Bench of the Federal Court headed by the Chief Justice Allsop, Flick & Perram JJ, the appellants are awaiting a decision in the matter heard in May of this year.
To bring all this together recently our Prime Minister Tony Abbott with a litany of his Ministers are in ‘attack mode’ of the EPBC Act because they say its “holding up billions of dollars in investment” in Australia resulting in tens of thousands of jobs in danger.
I find it startling how when the shoe is on the other foot and the EPBC Act has been used to smash the private property rights of individuals that the government (of both political persuasions) are silent in the public domain. Not to mention all of the mainstream media tripping over themselves to help them regurgitate their empty rhetoric when they should have all been in court for the matters of Spencer and Esposito telling the rest of Australia just how important these decisions are. Perhaps they will wake up when its too late. The Esposito’s are in their 80’s now and Mr. Spencer has lost his farm and everything he was fighting for. Much is hanging on the Full Bench decision due at any time and it may yet end up in the High Court.
So ask yourselves who is the king of the Castle? Clearly the ones who write the rules and those who interpret them because individual "rights" mean nothing against the rights of the masses whatever that means?
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