Section 20 - Property rights

A person must not be deprived of his or her property other than in accordance with law.

 

Section 20 establishes a right not to be deprived of property other than in accordance with law. This right does not provide a right to compensation. Although the Charter does not, as a matter of law, require compensation when property is acquired, you should consider in those circumstances whether compensation is required as a matter of policy. The Scrutiny of Acts and Regulations Committee will be likely to continue to comment adversely on legislation that provides for the acquisition of property without compensation, although it has been recognised by the High Court that the requirement under the federal Constitution that the Commonwealth Parliament cannot pass a law that acquires property without compensation on just terms (s. 51 (xxxi)) does not apply to the States.170

 

Section 20 ensures that the institution of property is recognised and acknowledges that Victoria is a market economy that depends on the institution of private property.


The scope of the right protected by s. 20 is a person’s right not to be deprived of his or her property other than in accordance with law.

As mentioned above, this provision is distinct from the provision in the Australian Constitution which provides property guarantees in relation to property acquired under federal law. Section 20 applies to Victorian law, not Federal law.


It is well established in international human rights law that a person must not be arbitrarily deprived of his or her property. Deprivation otherwise than in accordance with law is an example of arbitrary deprivation. The Universal Declaration on Human Rights was the first international instrument to codify this right in article 17, which reads:


(1) Everyone has the right to own property alone as well as in association with others.

(2) No one shall be arbitrarily deprived of his property.

What this right means


In one sense it is quite impossible for a government to deprive a person of his or her property otherwise than in accordance with law: if a Government acts unlawfully its actions will not be effective to deprive a person of his or her title to or ownership of his or her property.


However, ‘property’ in s. 20 has a wider meaning than title to or ownership of property, and ‘deprived’ has a wider meaning than being stripped of title or ownership (discussed below on page 128).


The primary impact of s. 20 will be in relation to these wider senses of property and deprivation. To comply with the right in these contexts, the deprivation must be authorised by law.


In the vetting context this means:

  • Where the common law or legislative provision deprives a person of title to or ownership of his or her property, you should ensure that the powers conferred by the common law or legislative provision are not arbitrary. If they
    are not arbitrary, nothing further is required to satisfy the right contained in s. 20. (However, you should take into account any other policy development guidelines that require, for example, provisions for notice, consultation, review and compensation. The Charter does not displace any such existing guidelines or existing legal requirements.)
  • Where the common law or legislative provision authorises the deprivation of property (in the wider sense), you should ensure that the powers conferred by the common law or legislative provision are not arbitrary. If those powers cannot be exercised arbitrarily, nothing further is required to satisfy the right contained in s. 20. (Again, however, you should take into account any other policy development guidelines.)
  • Where a policy authorises or requires a deprivation of property (in the wider sense), you should ensure that the policy is authorised by the common law or legislation and that the powers conferred by the law are not arbitrary.


‘Property’


The term ‘property’ is not defined in the Charter. It includes both real and personal property and any right or interest regarded as property under Victorian law. For example, the following will be included under s. 20:

  • personal possessions;
  • land;
  • contractual rights;
  • leases;
  • shares;
  • patents;
  • debts.


The notion of ‘property’ also extends to statutory rights, particularly where they have the characteristics of traditional property rights such as permanence and transferability.


Importantly, property could also apply to non-traditional and less formal rights in relation to property, such as a licence to enter or occupy land and the right to enjoy uninterrupted possession of land.


The above list is not comprehensive. These Charter Guidelines cannot provide policy officers with a comprehensive statement of Victorian law on the definition of property. It is important that you familiarise yourself with the range of rights and interests considered to be ‘property’ under Victorian law which might be relevant to s. 20.

‘Deprived’


The term ‘deprived’ is not defined in the Charter.


It will include situations where:

  • title to property is transferred to someone other than the owner;
  • title to property is extinguished;
  • a regulation has the effect of substantially depriving a property owner of the ability to use his or her property or part of that property (including enjoying exclusive possession of it, disposing of it, destroying it, transferring it or deriving profits from it).


‘Other than in accordance with law’


Section 20 only prohibits a deprivation of property that is carried out unlawfully.


To comply with this right, if a program or a policy may deprive a person of his or her property:

  • the deprivation must occur under powers that are conferred by legislation or the common law; and
  • if the deprivation of property occurs under discretionary powers, those powers should be confined and structured rather than arbitrary or unclear.


The second requirement is imposed because the requirement that permissible deprivations only be carried out ‘in accordance with law’ imports a requirement that the law not be arbitrary – that it be accessible to the public and formulated precisely enough to guide those who apply the law. Consult the Measures to Improve Compliance below for ways to help ensure that these requirements are met.

 

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170 Durham Holdings Pty Ltd v. New South Wales (2001) 205 CLR 399.