It must be said that I am certainly not an expert on constitutional law or even on property law, nor am I in any way holding out as such. However, I have had a lifetime of knowledge and experience in the Real Estate industry and contract law.
I have also extensively quizzed various solicitors, interested academics, land brokers, real estate agents and others on their views regarding these matters. From these discussions it became sadly apparent that opinions were at best grossly divided.
The fact is, it has been my personal experience, a large number of Australians are under the false impression that once they have "paid off " their real estate, that they "own" such property "freehold".
Of course this notion is a complete fallacy.
In fact, they enjoy "an estate in fee simple over the land". An estate in fee simple may well be the closest thing in Australia to true ownership of land - granted - but by definition to be close is not the actual. The holder of an estate in fee simple holds the land as tenant of the Crown. Land tax is in reality the "land rent" paid as a tenant.
 | ||||
| ||||
Book Publishers and Online Marketers
PO Box 118 Stepney South Australia 5069
email wealthcc@bigpond.net.au
Copyright 2001-2008 Cybersell Online Pty Ltd
ABN 63 091 738 224 All Rights Reserved
Spread the word via the power of the Internet
Click on button
www.1FORUM1.com Australian Republic Debate - Australian Republic Forum -
Australian Bill Of Rights - Compulsory Voting in Australia
Australian Republic Debate
Australian Republic Forum
Potential complexities of Property Law
in a future Australian Republic
by Charles Goodwin
author of The Secrets Of Wealth Creation Revealed
Greetings and welcome.
Firstly, and as an introductory statement, may I declare my own "bias" as to the republican debate.
Like many other Australians, I do not consider myself in either the Republican or the Monarchist camp.
I also consider myself apolitical. To my mind, Australia, with few exceptions, has been well served by our political leaders. Many Australians take delight in "bagging" our politicians yet raise our sporting stars to the position of near demigods. However, on world comparison standards I am sure that Australia produces excellent politicians and political leaders as it does in most other fields of endeavor.
Accordingly, I have the firm confidence that in the future, whatever the outcome in this debate, Australia will continue to produce such able and well-meaning leaders. That is not to say that we shouldn't all do our utmost to ensure that systems are in place that will prove both workable and functional.
It must also be noted that we as a nation are well served by an independent, competent, capable and often (internationally) envied, judicial system.
So with the aforesaid in mind, I have to admit that I think that there exists a high degree of inevitability that Australia as a natural process of social evolution will eventually become a republic. If so, let us pray that it does not create in the process, deep-rooted division within the Australian community. Obviously a non-partisan approach to the initial debate and processes will assist in the transition if (or when) such transition occurs.
Remember too, the possibility that England (especially as that country draws ever closer to union with mainland Europe) may not retain the monarchy (in its present structure) is not as remote in the longer term as one may at first consider. As we have observed in recent history, major international events can happen (comparatively) suddenly - often taking the majority by surprise. To address this possibility, however remote it may appear right now, must surely be at least considered.
Australia is certainly aptly served by the present system and yes indeed, there is a case in the oft-used premise that "if it isn't broke - why fix it?"
The concerns that I have, center upon another premise, "That if it's showing possible signs of fatigue, stress or fracture - perhaps it's NOW time to address, and if necessary, prepare and/or resolve such potential fractures before decisions need to be made hastily.
I am alluding to the potential complexities of property law in a future Australian Republic.
The national referendum held in November 1999 to decide on amending the Constitution so as to bring about a republic, in my opinion, was clearly pre-mature. The then proposed 'minimalist' model (i.e. the substitution of the Crown for a President in the Constitution) did not appear to fully address the full ramifications of the possible effect on property law.
We imported our real estate law from England. In 1066 William the Conqueror issued a decree that he owned all the land in England by right of conquest, thus ending privately held land. The principle that nobody owned land but the Crown, and from the Crown all titles flow began. William then set about granting estates (tenure) to his fellow Normans and Englishmen who offered allegiance.
The doctrine of tenure is an integral part of the law of Australia. It is this doctrine of tenure, which means the Crown is the owner of all land, that prevents the holder of an estate in fee simple from ever being regarded as an absolute owner.
Most land is held in Australia under the Torrens system. Note: the Torrens system appears to be more concerned with the transfer of interest in land rather than the actual nature (status of title) of interest in land.
How many people in Australia are aware that Chattels can be owned outright but in specific terms, real estate cannot?
Interestingly, see Mabo v Qld (No.2) (HC) (1992) 125 CLR 1. Apparently it is now thus held that even the Crown does not "own" the land - it only has the power to deal with the land. "If the Crown owned the land, there would be no room left for native title!"
An estate in fee simple is currently "vested" in the Crown. A fee simple is extinguished if the fee simple passes to the Crown e.g. it can be extinguished by a resumption (a nice word for compulsory acquisition) by the Crown.
The problems begin to occur when one asks the simple but important questions; "Under a proposed republic - in place of the current defining Crown - where is your land then vested and by what mechanism does such change take place?"
Would it be vested in the Government? (via perhaps by creating a new Republican definition of the Crown?)
Would it be vested in the President? (As the proposed 'minimalist' model seemed to indirectly advocate - i.e. the Crown being substituted by the President.)
Would it, or could it (as it has been suggested by a most qualified legal academic) possibly even revert to native title?
What could be the future ramifications of any of these proposals? Are the same future safeguards still in place when land is directly vested in the Government or in a person appointed by the Government, than at present? I think not!
Remember, the proposed 'minimalist' model advocated that the President replace the Governor General (not the Queen) - yet the Governor General is appointed by the Queen. The President would be appointed by the Government of the day. In relation to property title, this situation cannot be considered as equal safeguards even if it can be argued that the safeguards are adequate.
Hypothetically, and without meaning to be alarmist, what additional powers could a future "extreme" left or right wing government have at their disposal to extinguish (resumption) or compulsory acquire an estate in fee simple.
Compulsory acquisition of property is authorised under s51 of the Constitution "upon just terms". The States also confer power by legislation on State instrumentalities to compulsorily acquire property - yet the Constitution does not grant a base to attack the compensation offered where such compensation is considered unjust.
Surely the Constitution could be amended to offer the basis of an appeal both on the compulsory acquisition itself and/or the level of compensation payable.
Yes, legislation can be enacted to grant such rights but legislation can also be amended or even worse, made retrospective. Indeed every one is presumed to know the law, yet with retrospectivity, it appears we are now also expected to be blessed with an element of prophesy.
Albeit on a different matter, retrospective legislation has been introduced before in this country in an attempt to extinguish title - Refer:
(retrospectively extinguishing all of the rights of the various Torres Strait islanders back to the original acquisition of sovereignty by the British Crown in 1879) http://www.vicnet.net.au/vicnet/COUNTRY/jewish/mabo.htm
(Wonderful paper by Ron Castan QC - Reflections on Mabo - a must read!)
Further, can we legally (and importantly - "beyond legal challenge") change the property status in Australia from being vested in the Crown (as per the current muddled definition), to being vested in the President or a revised definition of the "Crown"? This is not as absurd as it sounds - it has been suggested that we may not be able to do so, so easily.
When the term "The Crown" is used, often varied or almost contradictory meanings seem to be implied or asserted. These varying definitions could well have major consequences. e.g. Your home is currently vested in the Crown - wouldn't it be reasonable and logical to know (beyond debate or doubt) the complete legal definition of the Crown to which it is vested?
Many learned people would say "The Crown" implies "Queen Elizabeth II". Others may say it implies "that power represented by the Governor General on behalf of Her Majesty" or "The Crown is an hereditary monarch who does not need to base decisions on the whims of politicians" and so on.
The facts are, that historically there has existed near impossible barriers in making clear distinctions between crown and government - government and administration and crown and administration. This trilogy of power appears to bumble along adequately in a constitutional monarchy. However a Republic is entirely a different matter especially with the status of land tenure.
The preamble to our Constitution states the people of the former colonies "have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland. In s61 of the Constitution, the executive power is vested in the Queen and exercisable by the Governor General.
What is apparently meant here by "the Crown" is the constitutional office of the Monarch. To confuse matters further, Governments in Australia as a constitutional monarchy may also be referred to as "the Crown".
Whatever the definition, what processes would be needed, if any, to "de-vest" such land?
Our constitution originally was passed as an act of the British Parliament - I agree that the foundation of the Australian Constitution is the Crown - thus, has the British Parliament any further say in the de-vesting of land title in Australia from the Crown?
What would be the ramifications to our real estate laws if England suddenly became a republic? Yes, we would obviously very quickly have to change our constitution. That would be difficult enough trying to reach a consensus, but are we ready for the possible consequences to our common and statutory property law? Shouldn't this be addressed now - just in case?
Is it possible to change to an "allodial" (freehold) system - and why should this not be a consideration?
After all, one may well ask, in a free Republic is it over the top to expect a truly freehold land system set free from the yolk of our colonial past? The question can be legitimately posed - why should we bear the burden of the shackles that were imposed by William the Conqueror in 1066 in a modern republic in the 21st century. Does the doctrine of tenure need to remain an integral part of the law of Australia?
Alas, if it were only that simple!
Obtaining the right to freehold real estate is a steadily growing movement in the USA. That is, to revert back to what their founding fathers intended. e.g. As recent as 1997, the Nevada Legislature created a new section of statutes within the property tax statutory scheme whereby certain home owners can apply for an allodial title relieving them from the payment of all further property taxes.
(allodial -owned freely; not subject to the restriction on alienation that existed in feudal law; land held absolutely in one's own right, and not of any lord or superior; land not subject to feudal duties or burdens - absolute freehold ownership of land. A system of land ownership in which land is held free and clear of any rent or service due to the government.)
Many of you may well be shocked if you visit -
"Today, most American people do not "own" their land, not even after they've paid off the "mortgage" and satisfied the bank note. This comes as a surprise, perhaps a shock, to most people. Instead of sovereign, allodial ownership of property as the founding fathers intended, most people have only temporary possession and minimal control over a particular piece of land for so long as they pay the bank note, pay the taxes, submit to building codes and regulations, and the government doesn't condemn or take the land for public use, with or without compensation".
Or to assess the passion that can be generated google the hundreds of sites relating to allodial title in the USA. e.g.:
1. The founding principles of allodial title must be upheld and enforced by laws and severe punishments for anyone who would violate them. This also includes all Government employees on any level (federal, state, and municipal ) appointed and elected.
2. No legislation will be introduced that violates allodial ownership. We the people are subject to no earthly sovereign.
3. All past, current and pending laws that violate the principle of allodial ownership shall be repealed.
4. No Government legislative body shall have the right to enact any law or treaty which violates the Inalienable right to allodial ownership of property.
I'm too much of a realist to expect such dramatic change, nor think it would be advisable. The effect of a total freehold system would vastly affect our manner of government including but not limited to, mineral rights, compulsory acquisition, fair native title, ability of Governments to raise property taxes, bank mortgages and the rights of foreclosure - not to mention Australia's international credit standing. However, as in some states of the USA, freehold private home ownership may well be an optional choice.
Therefore I advocate that at least a study be instigated into the possibility of Australians having the basic right of owning their own private place of residence freehold whether or not we move towards a republic.
Notwithstanding, I do feel that prior to the Australian people being once again "asked" (told) to vote on their future on such an important issue as a republic, that relevant property issues are first and foremost comprehensively dealt with by Australia's best legal minds.
To ensure that voters can offer an informed vote, the results of such independent study should be followed by a clear educational program.
Warmest Regards
Charles Goodwin
Charles Goodwin is the author of the highly rated book “The Secrets Of Wealth Creation Revealed” (available as a paperback or e-book.) Read more free articles by Charles http://www.wealth-creators-club.com or his Blog “The Esoteric Charles Goodwin” at http://charlesgoodwin.blogspot.com
