The concept of ownership is at the heart of any property regime. 18th century English jurist William Blackstone described ownership as ‘that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe’.
Australians share this individualistic understanding of ownership. If I own property – that is goods, land or intangible things such as shares in a company – then it is my right to decide how that property is used and by whom.
Recently the house of the French National Assembly passed laws under which supermarkets must donate to charity food that would otherwise be discarded. The laws are now before the French Senate. As reported in the London Telegraph in August last year, the law requires ‘supermarkets with 1000 square metres of floor space to give their “unsold but still consumable food products to at least one food charity”’. Penalties would apply for failure to comply.
Is a law that compels food donation by supermarkets consistent with our understanding of property ‘ownership’? Does it go too far in infringing the ownership rights of supermarket retailers? To answer these questions we must consider what it is that our property law system seeks to achieve.
One goal of property law is to protect individual rights to property. This concern is reflected in the views of Australian courts, in reference to compulsory acquisition. Take for instance the presumption applied by courts that parliament does not, in making laws, intend to interfere with private property rights.
The Australian High Court expounded this rule recently in R & R Fazzolari Pty Ltd v Parramatta City Council; Mac's Pty Ltd v Parramatta City Council (2009) 237 CLR 603. The courts’ view was that a statute be interpreted so as to authorise ‘the least interference with private property rights’.
As well, private property rights are one of the few rights expressly protected under the Australian Constitution. Readers may be familiar with the movie The Castle which looked at section s 51(xxxi) of the Constitution and the prohibition there on the acquisition of property on other than ‘just terms’.
Underpinning all this is respect for the individuals’ right to own property and to control how that property is used. Defining this in law helps to create an ordered society in relation to our material world. Property law, then, and its protection of ownership, performs a