The Government Took My Property! A Comparison of Acquisition Law in Australia and the United States

By Silas Flint

Most people don't think much about acquisitions or "takings" of private property by the government--until they receive a letter that their land is about to be taken! This complex subject is made easy to understand in this volume. The author uses zany humor and bizarre examples to describe the history of acquisitions in Australia and the USA, and how they have come to be what they are today. While the book is written from an Australian perspective, it also provides significant insights into American takings and how they operate.

• Language: English
• Publisher: Silas Flint
• Release date: Nov 14, 2014
• ISBN: 9781311440686

Silas Flint

Silas Flint is an attorney in Utah. He has never met Santa Claus or run for governor.

Book preview

The Government Took My Property!

A Comparison of Acquisition Law in Australia and the United States

by Silas Flint

Copyright 2014 Silas Flint

Published on Smashwords

This book may not be reproduced, copied or distributed without the express permission of the author. Each person desiring this book should obtain his own copy. Thank you for respecting the work of this author.

Cover art: 1908 postcard

TABLE OF CONTENTS

CHAPTER 1: Not Quite Like Two Peas in a Pod

CHAPTER 2: The Two Countries Compared

CHAPTER 3: Constitutions v. Statutes

CHAPTER 4: An Overview of Acquisition Cases in Australia in the 1800s

CHAPTER 5: Crown Grants and Early Regulatory Takings

CHAPTER 6: The Takings Clause in the United States - Where Did it Come From?

CHAPTER 7: Origins of Australia's Acquisition Clause

CHAPTER 8: The Three Essential Limits

CHAPTER 9: Takings in Wartime: When Does the End Justify the Means?

CHAPTER 10: Even Those in the Right Road Will Get Run Over if They Just Sit There

CHAPTER 11: The American Removal of Due Process from Takings Cases

CHAPTER 12: Examples of Due Process in Takings Analysis

CHAPTER 13: Is a Taking Something Lost or Something Gained?

CHAPTER 14: Gain v Loss: Trying to Make Sense of it All

CHAPTER 15: Some Things Are More Easily Acquired than Others

CHAPTER 16: When is a Public Purpose Not a Public Purpose?

CHAPTER 17: Constitutional v Statutory Takings Protections: Is One Really Better Than the Other?

CHAPTER 18: Conclusion

OTHER BOOKS BY THE AUTHOR

CHAPTER 1: Not Quite Like Two Peas in a Pod

Arriving home from work one day, Joe Citizen goes through the normal routine of having a quick drink, feeding the ungrateful cat and checking his mail. Buried amidst the regular circulars, ads and junk mail, he finds to his astonishment a letter from the New South Wales government that makes his hair stand on end. He is kindly informed that his house of ten years which he recently remodelled is to be demolished to make way for a new freeway. An assessment of estimated monetary value is provided, along with a pleasant note that if he contests the issue, he is welcome to lodge a formal protest …

A typical citizen's response to such a notice, after the initial screams and hysterics have subsided, is to quickly educate himself about the process of submitting a protest. After all, there are certain things that certain people at the state need to hear, and he is determined to be the one to make them hear them. And why not? They had the audacity to take his property without even the decency to give much of a warning.

And thus is born an instant desire to learn about that mysterious thing referred to in law vaguely as 'eminent domain'--the power of government to take the property of anyone they please for a public purpose upon payment of fair compensation. As if 'eminent domain' wasn't enough of a vague term that lacks a self-evident meaning, it becomes further complicated by some of its other names: resumption, expropriation, compulsory acquisition, acquisition or just plain 'taking.' The favourite or preferred term for eminent domain in Australia is 'acquisition,' while in the United States it is a 'taking.' The target of such a notice can no doubt think of a number of other names to call it, most of which would not be appropriate to publish in this book. A good many of them were expressed in the 1997 movie hit, 'The Castle,' in which the Kerrigan family faced demolishment of their house for an expansion of the Melbourne airport.

It is primarily within the last thirty years that the strange animal known as 'eminent domain' or 'acquisition' has gained very much attention in Australia. This new awareness and even antagonism between the populace and government coincides with a growing sense in Australia of the sacred importance of individual rights. Australians are no longer as content to sit back and watch government do what it pleases without significant protest. The populace is coming more and more to expect preservation of individual rights, irrespective of the fact that Australia is the only major democratic nation on earth without a bill of rights. The #!*@! government better not mess with my rights! has become an increasingly common slogan used by the average Australian citizen.

With this rights awareness, many Australians when introduced to the concept of acquisitions wonder where such a strange beast came from. How did it develop? Why do we even have it anyway? Why can't I just tell the government to 'shove off' if they want my property, rather than being forced to give it to them?

And then other questions start to arise. How does the whole 'eminent domain' thing play out in America? After all, they're so 'rights crazy' over there they let people run around buying guns and shooting each other! Is acquisition law in Australia similar to that in the United States? Do citizens have similar rights in the two countries? Or is it better in one place than the other? Will looking at the American experience help us better understand our situation in Australia?

This book seeks to answer these questions. It focuses on the evolution of acquisition law in Australia and the United States, and then compares the two. It does so in a way that is clear and understandable for all readers, not just lawyers. One of the main goals is to provide a better understanding of Australian acquisition law by contrasting it with that in America, since we often see things more clearly by such comparisons. Indeed, comparing takings in these two countries will help each country to better understand their own system as well as the laws of the other country. After all, since both countries were originally settled as British colonies, they both logically should have grounded their acquisition or takings law in the British tradition.

And what was this tradition? Primarily one that prided itself on fairness in such matters. There needed to be fair procedures in place, so the government could not take property arbitrarily without the owner’s involvement, including the owner's ability to protest. A fair compensation needed to be paid, to diminish the sense of victimization inherent in every acquisition. It also was only fair that no act of eminent domain should be allowed to benefit private parties, rather than the public as a whole. These three elements--fair procedures, fair pay, and fair impact--are at the very heart of acquisition law in both Australia and the United States.

The importance of fairness in such cases is obvious when it is remembered what an acquisition really is--confiscating someone's land without their willing permission. If anyone else were to engage in such an act, they would be locked up rather quickly. However, when government is the one to do it, the story is altogether different since the government is (supposedly) justified in doing so, for the good of the whole.

But of course, even laws of fairness can vary from place to place. There is no magic, ethereal fairness meter which flashes red when fairness has been defied somewhere. Every society adopts its own unique rules of fair play, similar to different playground rules at different grammar schools. The rules are usually similar, but are often also peculiarly adapted to the unique circumstances of the entity making them. And so it is with these two colonies founded under British expansion. Australia and the United States both created their own unique system of eminent domain, based on the British model of fairness which they inherited.

There is a lot of story to tell here, and it takes some time and development to tell it all. To obtain a deeper grasp of the subject it is necessary to dust off some long ignored history buried happily beneath the surface in each country. Whether we like history or not, it defines why we are where we are and how we happened to get there. The journey is usually a fascinating mixture of unlikely events mixed with a touch of dullness, a speck of influence by a founding father or two, and plenty of doses of contradictory statements by judges who have tried to make sense of it all. This concocted witch's brew often yields surprising results, as we shall see.

So, we begin the story, hoping to learn a few nuggets of truth that will not only help us understand each other better in these two countries, but also help us understand our own laws better. Sometimes looking at a problem through someone else's eyes clarifies our own vision. Of course, paramount among the issues to be addressed in these pages is the extent to which each country held true (or at least tried to hold true) to the original British underpinnings of fairness as the most essential ingredient of all takings. In particular, did they hold true to fair procedures, fair pay and fair impact? How did they modify these concepts? Were modifications the same or close to the same in Australia as in the United States? The only way to discover the answer is to enter the chambers of parliament and the courtrooms in countries that were half a world apart ...

CHAPTER 2: The Beginning – Acquisitions in the 1800s

Modern acquisition law in Australia and the United States did not just pop into existence in a fully formed, explainable fashion, any more than newborn babies arrive home from the hospital speaking the King's English and having a proficiency in online gaming. Before diving into the mystery of early acquisition law in the two countries, it is helpful to get a firm grip on the differences and similarities between these two vastly nonidentical twin nations. After all, people are often driven to modify and create their laws--especially their property laws--according to such mundane differences as how much rain they get, how steep the mountains are between the farm and town, how many settlers were bold enough to risk life and limb to live with the insects in the wilderness, and how likely people are to start shooting each other if things don't go the way they want. It was no different with Australia and the United States.

Differences and Similarities Between the Countries

During the summer of 1787, while the American founding fathers were sweating and hammering out their Constitution through the Philadelphia heat, the first convict ships from Great Britain sailed toward the new prison colony of New South Wales. There had been an ever growing number of prisoners in England since the start of the American Revolutionary war.[1] While the mother country would have loved nothing better than to send its imprisoned troublemakers to America to cause their former colonies some grief, they apparently concluded that since the Americans were troublemakers themselves they would welcome them with open arms. They therefore determined to send these dregs of society to a warmer and more comfortable climate where they would have far more opportunities to obtain land after paying their debt to society than they ever would have had in England. Accordingly they sent them to Australia.

And here we see the first and one of the most obvious of the differences between the two countries. The timing of settlement differed greatly between them. By the summer of 1787, settlers had lived in the British American colonies for over 150 years. Australia, on the other hand, did not have any white settlers until the arrival of the first convict ships in Botany Bay, in January 1788. These different settlement dates, and indeed the different reasons or causes for settlement greatly affected their unique development. This was primarily due to differences in the relationship the colonists in each country had with the home government in Great Britain. The British Government learned from its experience with the American rabble and changed the way it dealt with its colonies. These changes are the reason for the vastly different reactions by the colonists in each country to the British government that persist to this day. These differences can be summed up by the American tendency to burn the king/queen in effigy, while their Australian counterparts are more likely to put his/he likeness on their coinage.

If we journey farther back in time to the original settlers of the British American colonies in the 1600s, they tended to set up home governments that often acted quite independently of the mother country from the outset, and were often quite different from each other. The puritan governments in New England, for example, differed markedly from the colonies in the south, which consisted largely of plantations. While royal charters from the King provided the basis for settlement of many of the colonies and their first laws, the colonists were left largely on their own to establish their home governments.[2] The Americans thrilled at their independence while at the same time maintaining the fiction they had the same rights and were no different than their counterparts in the mother country. This schizophrenic tendency to both maintain an attitude of hot-headed, free-wheeling independence while at the same time claiming the full slew of rights that pertain to a non-independent, structured society, remains one of the hallmarks of American culture to this day.

The advent of the French and Indian war in the 1760s, brought this schizophrenic attitude to light. This war was primarily a dispute between Britain and France over which country would dominate North America. The war was very costly, and the home government in Great Britain naturally felt it was only fair for the American colonists to pay some of the costs for their own protection, since it was the Crown’s armies that had largely saved them from being scalped. Accordingly, the home government started to impose taxes on the American colonies to raise revenue. The American colonists were not accustomed to such controls, and resisted all such attempts. The home government in Great Britain did not take this resistance well, reacting with still more attempts at control and more taxes. This in turn led to more rebellion by the American colonists, and eventually to bloodshed and revolution.[3]

In Australia on the other hand, the first governments were set up directly by England and run by penal governors appointed and closely controlled by the Crown. These governors initially wielded almost unlimited power, which they naturally enjoyed using. Only gradually was the Governor’s power reduced, and representative government introduced. However, when representative government was begun, the home government in Great Britain was more willing to let them be independent without forcing laws or taxes upon them.[4] Hence, a key difference between the two countries was the level of control each experienced from the home government in Great Britain, during their time as colonies. This distinction was partly a function of time. By the mid-1800s when the Australian colonists began to desire home rule, the home government in Great Britain had come to believe that the most effective way to deal with colonies was to let them create their own messes and govern themselves as much as possible.[5] This tended to avoid revolution and made it easier to point the finger of blame at the colonists themselves if things went badly.

In sum, Great Britain did not control its American and Australian colonies in the same way. In fact, the method of control by the home government in Great Britain was almost the exact opposite in each country. In the American colonies, control was mostly minimal for many years. This initial lack of control resulted in the American colonists becoming quite independent, which they were happy to demonstrate with their muskets. In the Australian colonies on the other hand, the colonists found themselves faced with almost the opposite problem: How could they get the home government in Great Britain to pay enough attention to them to give them any assistance at all? These unique points of view had more impact on the development of acquisition law in the two countries than any other factor.

But there were other differences between these two countries as well. One was population. The settlement of the United States started over 150 years earlier than that in Australia, but population growth in the United States has greatly outstripped that of Australia even when this earlier start is taken into account. The United States census of 1830 indicates that there was a white population of 12,866,020. As for the population of Australia, which for some reason decided to conduct its censuses on years ending in '8,' by 1828 it had only 58,197 white settlers,[6] many of whom were prisoners who were surprised at how much better convict life was in a country where they wouldn't freeze to death in their jail cells. The significant indigenous populations in both countries was sadly but equally despised and ill-treated, and therefore was naturally not included in these early censuses. The Aboriginal population in Australia in 1788 was estimated to be approximately 750,000 persons.[7] The

Native American (Indian) population in the United States in 1830 was estimated to be 313,130, although it had initially been much higher when British colonists started to arrive.[8] Epidemics and sicknesses had been happily passed on to the indigenous population for years by the English colonists, often leading to the decimation of entire native populations. It should also be noted that under Article 1, section 2 of the United States Constitution, only 3/5 of the black population were counted in the United States census of 1830. Of course, Australia had no comparable slave population. With these factors considered, Australia had 0.45% of the white population of the United States in the 1828-1830 time frame.

In the years that followed initial settlement, gold rushes and various encouragements to immigrate contributed to population growth in both countries. Over the next one hundred years the percentage of Australians to those in the United States increased, but the difference between the populations was still great. By 1900 for example, the population of the United States had grown to 76,212,168, while Australia had a population in 1898 of 3,664,715. Hence, by this point in time blacks and Native American Indians were fully counted in the United States census, but were for the most part still not included in the Australian census. Hence, Australia at the end of the nineteenth century had 4.8% of the population of the United States, or in other words 20 Yanks for every Aussie. Today, a little over a century later, the vast population difference continues. As of 2013, Australia has roughly 7% of the population of the United States. Happily, aborigines are now counted by the Australian census.

But this is still not all. While the two countries are close to the same size in terms of square kilometres or miles, they differ more markedly than one would think in terms of their geography. The United States contains vast stretches of fertile farmland from the eastern seaboard all the way to the Great Plains at the feet of the Rocky Mountains. As anyone who has travelled more than 100 miles into the interior of Australia knows, most of the interior tends to look like a barren desert wasteland. One scholar noted that Australia ‘is a dry continent; aridity is the transcendent difficulty of Australia, and almost all her ills are connected with and subsidiary to it. No less than eighty-seven percent of the [Australian] continent has an average rainfall of less than 30 inches … the United States has about five times as much temperate land with a rainfall of over 20 inches