Property and Proportionality, Dr Nicole Graham, University of Sydney Law School
The legitimacy of land use regulations over private property in Australian states and territories has been increasingly publicly challenged on the premise of a narrative in which unfettered property rights are fundamental to the architecture of law and modern society. The debate is framed as one between a private right to property and the public interest in environmental regulation of private land. However, this framework obscures geographical, historical and legal facts.
Geographically, the environment is not outside private property. Historically, property has long been a dynamic institution that has adapted to changing socio-economic contexts. Legally, a right to property is not absolute but qualified by earlier, concurrent, prospective, successive and competing interests. The framing of the debate between private property rights in land and public environmental regulation also revives another debate about whether a property right is a ‘human right’ at all.
In the recent ‘Freedoms Inquiry’ Report of the Australian Law Reform Commission, the proportionality principle was identified as one method by which law-makers might evaluate the validity of public regulations of private land use. Conventionally reserved for debate concerning the protection of fundamental civil rights, such as the right to political communication, the extension of the use of the proportionality principle to resolve tensions and disputes over the regulation of private property elevates property rights to a status not previously seen in Australia. This paper considers the use of the proportionality principle within the context of the taxonomy of Australian laws, and the potential risks and benefits for a continent that is largely privately held.
Dr Nicole Graham is an Associate Professor at the University of Sydney Law School. She teaches and researches in the fields of property law and theory, and legal geography. Nicole has written on the relationship between law, environment and culture with a particular focus on property rights, natural resource regulation and the concept of place. Nicole has received teaching awards for her work teaching property law, is recognised as a highly effective first year specialist, and has made significant contributions to educational development in embedding Indigenous laws and perspectives into the law curriculum; and sustainability in legal education.
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