Speech to the Australian Libertarian Society’s 3rd annual Friedman conference

Introduction

Thank you.

It is a great pleasure to attend the Australian Libertarian Society’s Third Friedman Conference.

I’d like to acknowledge the outstanding efforts of Tim Andrews and John Humphrey for bringing this important conference together.

I’d also like to acknowledge the previous speaker, Tom Palmer, and his outstanding work in advancing liberty across the world.

Human rights adrift

Throughout the second half of 2014 I ran a national consultation looking at the human rights challenges in Australia, and particularly the role of free speech and association, religious freedom and property rights, as well as fostering a culture of responsibility accompanying rights.

While many people who attended the public forums disagreed with the focus of the consultations, it was the focus on property rights that drew the most criticism.

At a forum in Brisbane a representative from Amnesty Australia questioned the basis of the inclusion of property rights as part of a human rights consultation at all.

The simple answer to their question is that Article 17 of the Universal Declaration of Human Rights states that “everyone has the right to own property alone as well as in association with others [and] no one shall be arbitrarily deprived of his property”.

Throughout the consultations property rights were consistently an issue raised by members of the public. Issues raised ranged from the treatment of older people selling their homes to access aged care through to what happens to people who permanently live in caravan parks because it is their gateway to affordable housing and invest in permanent annexes when the park owner sells the land.

These examples highlight one of the central myths that surround property rights: that they favour the rich. The rich can take care of themselves. They’ll always find ways to protect their property. It’s the poor and powerless who cannot. They need the protection of secure property rights. 

But the more complex answer requires explaining that you can’t actually understand human rights unless you support the sanctity of property rights. 

The philosophy of property rights

This year is the 800th anniversary of Magna Carta. The Great Charter essentially commenced the snowballing effect that led to the modern idea of human rights.

The Charter of 1215 established a clear principle that a person’s property could not be seized by the King. The simple proposition provided the foundation for the common law inherited by Australia from England and the (albeit limited) property rights protection in our Constitution.

But it was John Locke that cultivated property rights as part of the human rights discussion. In his Second Treatise Locke argued the moral case that “every Man has a Property in his own Person … [t]he Labour of his Body, and the Work of his Hands, we may say, are properly his”. Locke continued by reasoning that when you value-add to an existing asset then it becomes the individual’s property.

What Locke understood, and has been largely lost from human rights discourse is that property is the moral and just reward of individual activity. Denying property is akin to denying someone of the reward for their labours.

That argument was clearer to make when you argue for peasants to keep the reward of their farming labour on the commons to grow their own food, but the complexity of a modern market economy does not make it any less just whether it is a person’s physical or intellectual labour.

The economic case for property rights has been amply demonstrated through history. Societies that have been best able to meet the material needs and aspirations of its population have been built on property rights.

Peruvian development economist, Hernando de Soto, demonstrated the harsh consequences of what occurs when property rights are absent in his ground breaking book, The Mystery of Capital.

But property rights sit against a critical backdrop to all rights-based arguments, that is, they must also be seen to be moral, fair and just – particularly in a society such as Australia’s.

Moral rights have been central to the development of intellectual property, particularly copyright that affords ownership and the right to receive reward for an individual’s artistic creation.

In his essay on ‘The right to private property’ American political philosopher, Tibor Machan, correctly identifies private property is “the social precondition of the possibility of a personally guided moral life”. ^[1]

In the absence of property rights individuals are essentially debilitated in their capacity to demonstrate generosity to others. All charity rests upon private property. If people do not own anything, then they can never give anything to others in need.

Property rights are human rights

But the real justification for property rights is that it is a human right. If you take the contemporary ‘progressive’ script on property rights they are essentially a right to protect existing privilege. In practice it is a demonstration of how adrift many people are from understanding the very nature and origin of human rights.

Arguably the very foundation of all human rights is property rights. The very basis of natural rights theory is that people own their own bodies and should be free to exercise their faculties to pursue their lives, opportunities and enterprise unless they do harm to others. It is why liberals and conservatives oppose slavery.

In 1959 Dr Murray Rothard argued “property rights, far from being in conflict, are in fact the most basic of all human rights … and from this right stems his right to the material goods that he has produced”. ^[2];

It’s essentially this principle that justifies paid employment. Because people own their own bodies, the use of their labour must be compensated for.

At the extreme end of the denial of human rights is slavery, but more modestly the denial of payment for someone’s labour at a voluntarily established price is a denial of their human rights. Equally, stopping people selling their labour at a voluntarily established price is also a denial of their human rights.

Yet despite property rights providing the foundations for human rights, the subject has always been controversial in their modern development, particularly through international negotiations. Property rights was a clear battle ground in the development of the 1948 Universal Declaration of Human Rights.

A 1947 analysis of drafts of the Declaration found “a majority of the drafts refer to the right to property, either in positive language or by prohibiting unlawful expropriation”. ;^[3] But views on how broad property rights should be respected was a battleground. With support from the Soviet Union and socialist countries, countries such as Panama stressed that respect for private property should be limited to “personal property”.

The dispute between countries over property prompted compromises. At one stage Belgium proposed “Within the limits of public interest, everyone is entitled to own property alone as well as in association with others.”

One of the central objections to the inclusion of property rights was that it reinforced an individualistic approach to human rights. On that point the Australian delegation identified the absurdity of such an objection. The Australian representative argued respecting property rights may “be termed individualistic … [but] in setting forth the rights of individuals … it would be difficult to avoid an individualistic approach”.

In the end the West won a temporary victory. Article 17 established a recognition of property which was undone during the development of the International Covenant on Civil and Political Rights. In fact property rights is one of the few rights that were included in the UDHR that isn’t in the ICCPR.

Article 27 of the UDHR also includes a framework for the creation of copyright by ensuring authors are able to have their moral and material interests protected.

There are also references to property rights in the Convention on the Elimination of Racial Discrimination and the Convention on the Elimination of Discrimination against women around the equal enjoyment of all to own property.

Since the negotiation of the ICCPR, the general effort has been to deprioritise property rights at the expense of other ‘rights’, particularly social and economic rights. Instead of reinforcing liberal human rights they’ve been used as an excuse to corrode them by arguing against private ownership and in favour of public acquisition to impose greater economic equality.

The decline of property rights as part of the human rights discourse results from a failure to recognise that they are no longer seen as just, whereas a person’s absence of property rights is seen as an injustice.

In part that is true. But it is only part of the human rights landscape. Property rights must be attainable for all, but no one has a specific right to an individual form of property beyond themselves, it has to be secured through effort.

But there is a real opportunity to reassert the primacy and justice of the human right to property in the one area that it is denied – Aboriginal Australia.

Through a series of decisions over a period of roughly two hundred years Aboriginal Australians have essentially been denied their property rights. It is intrinsically linked to the incapacity for many communities to sustainable foundations. The recognition of native title in the 1990s started to redress this denial. But the recognition of native title is only the beginning of addressing the problems of property rights denied.  

Plenty of advocates are happy for Aboriginal Australia to have their property rights, but concurrently deny them the freedom to exercise them. Property rights don’t just include ownership, they also include the freedom to trade them and alter their use or improve their value.

It’s not enough for Aboriginal Australians to simply have property rights; they must also have the freedom to exercise them.

Aboriginal leaders from Broome to Cairns have detailed to me the complex bureaucracy after native title is secured, including:

• Excessive regulations that undermine self-determination and entrench poverty.
• Land tax bills for property that they've never had the opportunity to develop.
• And legal restrictions that stop land being used as equity to raise the capital to be entrepreneurial.

The consequence is to undermine the self-determination of Aboriginal communities.

This is neither fair, nor just.

To seek redress, with the Aboriginal and Torres Strait Islander Social Justice Commissioner, Mick Gooda, I have organised a high-level symposium on the importance of property rights to the future of Aboriginal communities later this month.

The symposium will start a process to discuss the legal and regulatory barriers that undermine the exercise of native title, and the subsequent issues around finance and risk so communities can promote sustainable economic development.

It is not our place to tell Aboriginal Australia how to use their land. But it is our duty to ensure they can by removing red tape. Reform requires:

• Flexible legal instruments enabling communities to use their title as they see fit, including with different ownership structures that meet their needs.
• Complimentary new business models that ensure finance can be raised, and risk can be priced, so communities can build economic opportunities.
• Mechanisms to raise finance for the development of housing and ownership.

I know the views of many people in the room. Many of you will argue that communities should be moving away from collective arrangements and toward individual title. In my opinion that is a distraction.

Individual title has its place. But when a community is based around cultural norms of collectivism it’s more important to ensure that Aboriginal Australians have a form of title that works from them. They should also have options that work for both collective and individual ownership. We shouldn’t be insisting that their culture adapts to legal practice.

We also shouldn’t forget that there are modern legal structures that accommodate collective ownership. Company title on apartment buildings is a form of collective ownership over a single asset. As a society we’ve moved away from company title and toward strata primarily because company carries higher risk premiums when accessing finance. But that doesn’t mean company title or equivalent collective ownership structures don’t have their place.  

Having met with leaders, there is an appetite for constructive reform to set native title free.

Reform must respect native title’s unique role as a sacred bond between Aboriginal Australians and their homelands.

Any proposals from this forum will require the consent of native title holders if implemented and will not compromise the protection of the inherent legal rights of Aboriginal Australia.

The good news is that we were, at first, concerned that no one would turn up to talk about property rights. Instead we are over-subscribed.

It’s clear that Aboriginal Australians understand the legal and human consequences of what occurs when property rights are denied.

Until all Australians are able to own property, and are free to exercise their rights, their full human rights won’t be realised.

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^[1]T Machan, The Right to Private Property, Stanford University (2002), p 8.
^[2]M Rothard, ‘Human Rights are Property Rights’, The Freedman (April 1959).
^[3]>A Kiss and J Lammers (eds), Hague Yearbook of International Law / Annuaire de La Haye de Droit International, Vol. 17 (2004).