Last year I wrote a series of articles about possession and one about boundaries and the Torrens system. This week I want to tie them together.
You may remember that after the Whale Car Wash cases the state government changed the Real Property Act (which governs Torrens title land) to allow people to make possessory title claims. There were a surprisingly large number of valuable parcels of land where the owner by documentary title had seemingly forgotten them- as Mr. Beed and his family had done; there were even more odd bits of land- some were half acre blocks in towns that had never really developed and were used as grazing paddocks by nearby farmers, some were strips of land left between a road and a block of land after the road was rerouted, others may have been intended as roads but never dedicated as such...there were many reasons why people had neglected them.
The amendments allowed people to claim a lot in a plan, it did not –normally – allow someone to claim part of a lot. There was an exception- if a lot was cut into two parts by a road or a water course a person could claim the whole of the land even though he was only in possession of the larger part of it. That is an odd result because it defeats the possession –and remember our law particularly protects the rights of people who possess property- of whoever was ion possession of the smaller part.
But in practice that is not an issue because the Department of Lands requires a
n applicant for a possessory title to get his neighbour’s consent. And what is likely to happen is that the neighbour in possession of the smaller part will consent on the basis that the applicant transfers the smaller part.
And there is another answer to the problem where the boundary is a fence line rather than a creek or larger part .And here I return to the boundary issue in Clarencetown I wrote about last year where one neighbour claimed title up to a very old fence line saying they had possession of the land u p to the fence line even though their neighbour measuring their land from the supposed street boundary said (and they were right) that by the dimensions shown on their title plan it was they who owned the disputed land- some distance on the other side of the fence line. The court held the fence line is the boundary.
In a possessory title case one owner might not rely on possessory title at all but on where his fence line is. He may well say ‘both we and our neighbours have always accepted the fence as a boundary, and so it is the boundary.” Strictly he is relying on the fact that he is possession of the land but it’s a different concept. He is not claiming his neighbour abandoned the part of the land the claimant claims, rather he says that in effect by each regarding the fence line as the boundary they have agreed that it has became the boundary despite what the position as measured by dimensions shown on the title plans..
These answers do not help if someone only wanted to claim part of a lot- say (and I have seen this happen) a road cuts a large parcel of land in two- there is one part of say 95 acres and the other part of 4 acres from an original piece of land of 100 acres- the remaining acre being taken by the road.. The farmer who has fenced in the 4 acres cannot get a possessory title to it. The first answer doesn’t help because it’s only the farmer with the 4 acres who wants to claim title. The second doesn’t help because the road intervenes –the two neighbours no longer share a boundary.
This is still an issue that needs sorting.
(Local papers article week ending 27.5.2011)
Tuesday, May 24, 2011
Sunday, May 22, 2011
POSSESION IS NOT NINE TENTHS OF THE LAW- THE TORRENS SYSTEM- A TALE OF SKULLDUGGERY AND DECEIT
Until 1979 in New South Wales, it was not possible to acquire title by adverse possession to Torrens title land, section 45 of the Real Property Act 1900 said that the title of a registered proprietor could not be affected by adverse possession under statutes of limitation.
A once famous series of court cases shows what could happen. In 1921 Walter Beed bought (and so became the registered proprietor) of a house in Military Road Mossman Walter allowed his niece Jessica Beed (then aged 55) and her companion Miss Arthur to live there and went to America where he died intestate in 1933. Miss Beed also died in 1941 leaving Miss Arthur in the house. Two other ladies came to live with Miss Arthur, Miss Arthur and one of the ladies died leaving the remaining lady Miss Spark living there until in 1968 she moved to Queensland and instructed her solicitor Mr. Currie to organise a tenant. Mr. Currie arranged an agent who let the house to Mr. McLeod. During the time the ladies lived in the house they renovated it, they paid rates (the rates notices being issued Walter Beed c/o and then the various ladies names.
Meanwhile the neighbouring land was owned by Hamilton Rentals Pty Ltd a company controlled by Mr. and Mrs. Chambers and leased to another of their companies (Whale Car Wash Ltd). Whale then also leased some other parcels of nearby land.
Early n 1969 Mr. Currie was contacted by a Mr. Nelson Meers, a solicitor and a partner of a firm now called Gadens. Mr. Meers later became Lord Mayor of Sydney under the Civic Reform banner. Mr. Meers said he was acting for Whale Car Wash and offered Mr. Currie $2000 for Ms Spark’s interest in the land. Mr. Meers was also a shareholder in Whale Car Wash Limited. (As an aside to comparative values in 1968 my parents sold their home in Denistone – a Sydney suburb near Eastwood for $8000.)
Mr. Currie took instructions from his client and told Mr. Meers that she was not interested.
Later in 1969 a Mr. Ingram visited Mr. McLeod the tenant of the property Ms Spark had possessed. Mr. Ingram asked Mr. McLeod about the property he rented and then tried to persuade him to move. Mr. Ingram said he wanted to live there himself as his aged mother lived nearby and he wanted to live close to her to help her. Mr. Ingram was very persuasive offering to pay Mr. McLeod’s moving expenses, half his rent for the next year and some legal fees –in fact he arranged for Mr McLeod to see a Mr Riley whom he said was a solicitor. He also prevented Mr. McLeod from speaking to Ms Spark’s agent until after Mr. McLeod had moved out. A little while later Mr. McLeod went back to the house he previously rented and was surprised to see a young family in residence. He asked one of them- Mrs. Knox what had happened and was told they knew nothing of Mr. Ingram and that they leased the house from Whale Car Wash. Mr. McLeod asked Mr. Billerwell the agent who had let him his new house for the phone no of Whale Car wash and was given 969 2790. He rang that number and was told by a Mr. Riley that the manager Mr. Emerson was out and would ring back. Mr. Emerson never did.
Meanwhile Mr. Billerwell found out that Mr. McLeod had started living at the new house before he had signed a lease. Mr. Billerwell was sure he had not given Mr. McLeod or Mr. Ingram a key before then and reported to the owner who investigated the matter. The owner found that a panel of glass in a verandah door had been cut and part of the panel removed. The panel was large enough to get a hand through and open the door. Mr White later gave evidence of a phone call with Mr. Chambers to the effect that Chambers said to him "We needed the house that McLeod occupied for the car wash and I am willing to pay the difference in rent between what you normally got for the premises and wheat the new tenant will be paying."
Ms Spark soon found out what had happened and formally served a notice to quit on Mr McLeod, because he was still legally her tenant. (She had never consented to the lease being transferred to new tenant. Transfers of leases might be the subject for another article).She then started an action to ‘eject’ the Knox family. A little while later Whale Car Wash was substituted as the defendant and the case became one between Ms Spark and Whale.
The judge found these facts
• Mr Ingram was a false name and the story he had about his aged mother was a lie both used to persaude Mr McLeod to leave the house he rented from Ms Spark
• Mr Rliey was not a solicitor but probably an employee or in some way associated with Whale Car Wash
• Mr and Mrs Knox were tenants of Whale Car Wash
• The locks had been changed to prevent Ms Sparks’ agent from re entering the house
• Whoever Mr Ingram really was , he was acting on behalf of Whale Car Wash
He then held that because “Mr Ingram” had gained possession through Mr McLeod and because “Mr Ingram” was the agent of the company , Whale Car Wash could not argue that Ms Spark was not the owner of the property.
He went on to say that “Mr Ingram” by a number of false representations, a false story and a wrongful course of action , had fraudulently induced Mr McLeod to give him possession of the property.” He continued saying that Mr Ingram was Whale’s agent and that Whale (And all those associated with it,) were a part of a conspiracy (he called it the wrongful conduct of the company) .
And now I come back to where I started this series. Our law respects ‘possession’. Ms Spark had lawful possession of the property. She could resist anyones claim other than that of the true owner (Mr Beed or those claiming through his estate) while she was living at the property. Mr McLeod had rented the property and so acknowledged Ms Spark’s possession and her rights to possess the property. “Wrongdoers” (to use the judge’s polite word to describe the company and those associated with it)were in no better position than Mr McLeod- Ms Spark’s prior possession was sufficient title against the company as a wrongdoer. ..to hold otherwise would alloe the company thought its agents wrongful conduct to take advantage of his wrongful acts”
So Ms Spark won, the company was forced out, had to pay her costs and Ms Spark regained possession of the house in Mossman. But she was still not the owner because she was not the registered proprietor. And the next round was between her and Mr Beed’s descendants and I will write about that round next time.
A once famous series of court cases shows what could happen. In 1921 Walter Beed bought (and so became the registered proprietor) of a house in Military Road Mossman Walter allowed his niece Jessica Beed (then aged 55) and her companion Miss Arthur to live there and went to America where he died intestate in 1933. Miss Beed also died in 1941 leaving Miss Arthur in the house. Two other ladies came to live with Miss Arthur, Miss Arthur and one of the ladies died leaving the remaining lady Miss Spark living there until in 1968 she moved to Queensland and instructed her solicitor Mr. Currie to organise a tenant. Mr. Currie arranged an agent who let the house to Mr. McLeod. During the time the ladies lived in the house they renovated it, they paid rates (the rates notices being issued Walter Beed c/o and then the various ladies names.
Meanwhile the neighbouring land was owned by Hamilton Rentals Pty Ltd a company controlled by Mr. and Mrs. Chambers and leased to another of their companies (Whale Car Wash Ltd). Whale then also leased some other parcels of nearby land.
Early n 1969 Mr. Currie was contacted by a Mr. Nelson Meers, a solicitor and a partner of a firm now called Gadens. Mr. Meers later became Lord Mayor of Sydney under the Civic Reform banner. Mr. Meers said he was acting for Whale Car Wash and offered Mr. Currie $2000 for Ms Spark’s interest in the land. Mr. Meers was also a shareholder in Whale Car Wash Limited. (As an aside to comparative values in 1968 my parents sold their home in Denistone – a Sydney suburb near Eastwood for $8000.)
Mr. Currie took instructions from his client and told Mr. Meers that she was not interested.
Later in 1969 a Mr. Ingram visited Mr. McLeod the tenant of the property Ms Spark had possessed. Mr. Ingram asked Mr. McLeod about the property he rented and then tried to persuade him to move. Mr. Ingram said he wanted to live there himself as his aged mother lived nearby and he wanted to live close to her to help her. Mr. Ingram was very persuasive offering to pay Mr. McLeod’s moving expenses, half his rent for the next year and some legal fees –in fact he arranged for Mr McLeod to see a Mr Riley whom he said was a solicitor. He also prevented Mr. McLeod from speaking to Ms Spark’s agent until after Mr. McLeod had moved out. A little while later Mr. McLeod went back to the house he previously rented and was surprised to see a young family in residence. He asked one of them- Mrs. Knox what had happened and was told they knew nothing of Mr. Ingram and that they leased the house from Whale Car Wash. Mr. McLeod asked Mr. Billerwell the agent who had let him his new house for the phone no of Whale Car wash and was given 969 2790. He rang that number and was told by a Mr. Riley that the manager Mr. Emerson was out and would ring back. Mr. Emerson never did.
Meanwhile Mr. Billerwell found out that Mr. McLeod had started living at the new house before he had signed a lease. Mr. Billerwell was sure he had not given Mr. McLeod or Mr. Ingram a key before then and reported to the owner who investigated the matter. The owner found that a panel of glass in a verandah door had been cut and part of the panel removed. The panel was large enough to get a hand through and open the door. Mr White later gave evidence of a phone call with Mr. Chambers to the effect that Chambers said to him "We needed the house that McLeod occupied for the car wash and I am willing to pay the difference in rent between what you normally got for the premises and wheat the new tenant will be paying."
Ms Spark soon found out what had happened and formally served a notice to quit on Mr McLeod, because he was still legally her tenant. (She had never consented to the lease being transferred to new tenant. Transfers of leases might be the subject for another article).She then started an action to ‘eject’ the Knox family. A little while later Whale Car Wash was substituted as the defendant and the case became one between Ms Spark and Whale.
The judge found these facts
• Mr Ingram was a false name and the story he had about his aged mother was a lie both used to persaude Mr McLeod to leave the house he rented from Ms Spark
• Mr Rliey was not a solicitor but probably an employee or in some way associated with Whale Car Wash
• Mr and Mrs Knox were tenants of Whale Car Wash
• The locks had been changed to prevent Ms Sparks’ agent from re entering the house
• Whoever Mr Ingram really was , he was acting on behalf of Whale Car Wash
He then held that because “Mr Ingram” had gained possession through Mr McLeod and because “Mr Ingram” was the agent of the company , Whale Car Wash could not argue that Ms Spark was not the owner of the property.
He went on to say that “Mr Ingram” by a number of false representations, a false story and a wrongful course of action , had fraudulently induced Mr McLeod to give him possession of the property.” He continued saying that Mr Ingram was Whale’s agent and that Whale (And all those associated with it,) were a part of a conspiracy (he called it the wrongful conduct of the company) .
And now I come back to where I started this series. Our law respects ‘possession’. Ms Spark had lawful possession of the property. She could resist anyones claim other than that of the true owner (Mr Beed or those claiming through his estate) while she was living at the property. Mr McLeod had rented the property and so acknowledged Ms Spark’s possession and her rights to possess the property. “Wrongdoers” (to use the judge’s polite word to describe the company and those associated with it)were in no better position than Mr McLeod- Ms Spark’s prior possession was sufficient title against the company as a wrongdoer. ..to hold otherwise would alloe the company thought its agents wrongful conduct to take advantage of his wrongful acts”
So Ms Spark won, the company was forced out, had to pay her costs and Ms Spark regained possession of the house in Mossman. But she was still not the owner because she was not the registered proprietor. And the next round was between her and Mr Beed’s descendants and I will write about that round next time.
What does the Torrens system guarantee?
If you follow my newspaper column you will have seen me write about the Torrens system of land title a lot. It is an Australian system- exported to many places now- and quite different to the traditional systems. And it works a lot better, for example buying and selling land is much cheaper in Australia than in the USA where there is no Torrens system.
And I’ve written before about its core principles-
• The government guarantee (which is financed by a small part of the fee paid each time a document (be it transfer, mortgage, lease or what have you) is registered which protects people against losing their land by an abuse of the system. You may remember I wrote about Mr. Pritney who lost one of his blocks of land when someone fraudulently mortgaged it, collected the money from the mortgagee and disappeared.
• The register- the core of the system. The principle behind the Torrens system is that the register shows all the interests in the particular lot of land, who owns it, whether it’s mortgaged, if it’s leased, whether someone has an easement over part of it and so on.
But some people seem to think it does more than this.
I was surprised the other week when I saw another solicitor write that the Torrens system means that once a title is registered there can be no disputing boundaries, all that is needed is to look at the registered plan and work out the boundaries from that.
That might be so in most cases, but not all.
The first case where it is not so is boundaries change. Anyone who lives along the Hunter River knows this. A river boundary can change in two ways- suddenly- as happened when the river flooded in 1891 and cut through the “neck” of Horseshoe bend and a bit further downstream in the farming lands in East Maitland, and again in 1950 when it left the old Largs Bridge at Pitnacree bridging an empty gully. Generally the law doesn’t recognise these changes as changing boundaries- so there are some farmers with small pockets of land on the north bank of the river while their main land is on the south side. I don’t think they are of much use to them. But a river can also change slowly, so slowly that no one is really aware of them. And the law does recognise these change so that a block near Narrowgut which was surveyed as 25 acres when it was originally subdivided has become quite a lot larger because the river has slowly, very slowly indeed changed course since 1993.t his can be seem from the maps that accompany the Maitland Town Plan. These show the north bank of the river as ‘cutting into’ the land. These days the land has a ‘beach’ perhaps 10-15 metres long where the river used to be.
There is no way the Torrens system can guarantee that –you can’t prevent natural changes.
The second case is that surveys are now more accurate than they used to be. This is true for several reasons- not just better technology. There are now a series of recognised objects – state survey markers (which are often small brass discs in curb- there is one about 5 yards from my office in Church St), pegs left by other surveyors or prominent points that can be easily identified (such as the top of the spire of St Mary’s Anglicans Church in Maitland) that allow surveyors to better map their surveys.
In the past few of these objects were there. So a lot of the time surveyors had to work from what people took to be the boundaries- old buildings, long established fence lines, and so on.
And that again is something the Torrens system can’t avoid. A fairly recent case involving land in Clarencetown shows this. Mr. and Mrs. Boyton owned a block of land that had been sold by the government as late as 1976. It had always been Torrens title (all land sold by the state government for the first time has been Torrens title since the 1860s) their land adjoined Mr. and Mrs. Clancy’s land which was old system. The Clancys lodged a primary application to convert their title to Torrens. You have to lodge a survey with a primary application. The survey Mr. and Mrs Clancy lodged showed the boundary in the position of a long established fence line. The owner of the Torrens lot (that alienated in 1976) claimed the fence line intruded into his boundary and complained that this boundary gave them less land. They measured their block from where the crown plan which laid out Clarencetown said the street was-although the actual formed street didn’t coincide with that boundary (like most streets there was a verge between the formed road and the boundary. The court held surveying is not an exact science and there is no principle of law conferring indefeasibility of boundaries depicted in a deposited plan as distinct from indefeasibility of title conferred under the Real Property Act. It ruled that the fence line was the true boundary. It also said that in all likelihood the boundary of the Boyton's land was not where the crown plan (which was very old and for which there were no permanent surveying marks to plot the boundaries)said it was but a little to the north-which would then give Mr. and Mrs. Boyton enough land.
The real answer is that the Torrens system protects titles not boundaries.
And I’ve written before about its core principles-
• The government guarantee (which is financed by a small part of the fee paid each time a document (be it transfer, mortgage, lease or what have you) is registered which protects people against losing their land by an abuse of the system. You may remember I wrote about Mr. Pritney who lost one of his blocks of land when someone fraudulently mortgaged it, collected the money from the mortgagee and disappeared.
• The register- the core of the system. The principle behind the Torrens system is that the register shows all the interests in the particular lot of land, who owns it, whether it’s mortgaged, if it’s leased, whether someone has an easement over part of it and so on.
But some people seem to think it does more than this.
I was surprised the other week when I saw another solicitor write that the Torrens system means that once a title is registered there can be no disputing boundaries, all that is needed is to look at the registered plan and work out the boundaries from that.
That might be so in most cases, but not all.
The first case where it is not so is boundaries change. Anyone who lives along the Hunter River knows this. A river boundary can change in two ways- suddenly- as happened when the river flooded in 1891 and cut through the “neck” of Horseshoe bend and a bit further downstream in the farming lands in East Maitland, and again in 1950 when it left the old Largs Bridge at Pitnacree bridging an empty gully. Generally the law doesn’t recognise these changes as changing boundaries- so there are some farmers with small pockets of land on the north bank of the river while their main land is on the south side. I don’t think they are of much use to them. But a river can also change slowly, so slowly that no one is really aware of them. And the law does recognise these change so that a block near Narrowgut which was surveyed as 25 acres when it was originally subdivided has become quite a lot larger because the river has slowly, very slowly indeed changed course since 1993.t his can be seem from the maps that accompany the Maitland Town Plan. These show the north bank of the river as ‘cutting into’ the land. These days the land has a ‘beach’ perhaps 10-15 metres long where the river used to be.
There is no way the Torrens system can guarantee that –you can’t prevent natural changes.
The second case is that surveys are now more accurate than they used to be. This is true for several reasons- not just better technology. There are now a series of recognised objects – state survey markers (which are often small brass discs in curb- there is one about 5 yards from my office in Church St), pegs left by other surveyors or prominent points that can be easily identified (such as the top of the spire of St Mary’s Anglicans Church in Maitland) that allow surveyors to better map their surveys.
In the past few of these objects were there. So a lot of the time surveyors had to work from what people took to be the boundaries- old buildings, long established fence lines, and so on.
And that again is something the Torrens system can’t avoid. A fairly recent case involving land in Clarencetown shows this. Mr. and Mrs. Boyton owned a block of land that had been sold by the government as late as 1976. It had always been Torrens title (all land sold by the state government for the first time has been Torrens title since the 1860s) their land adjoined Mr. and Mrs. Clancy’s land which was old system. The Clancys lodged a primary application to convert their title to Torrens. You have to lodge a survey with a primary application. The survey Mr. and Mrs Clancy lodged showed the boundary in the position of a long established fence line. The owner of the Torrens lot (that alienated in 1976) claimed the fence line intruded into his boundary and complained that this boundary gave them less land. They measured their block from where the crown plan which laid out Clarencetown said the street was-although the actual formed street didn’t coincide with that boundary (like most streets there was a verge between the formed road and the boundary. The court held surveying is not an exact science and there is no principle of law conferring indefeasibility of boundaries depicted in a deposited plan as distinct from indefeasibility of title conferred under the Real Property Act. It ruled that the fence line was the true boundary. It also said that in all likelihood the boundary of the Boyton's land was not where the crown plan (which was very old and for which there were no permanent surveying marks to plot the boundaries)said it was but a little to the north-which would then give Mr. and Mrs. Boyton enough land.
The real answer is that the Torrens system protects titles not boundaries.
Sunday, April 10, 2011
Easements again
The concept behind the ‘standard form’ or easement I touched on in my last article is simple. It simplifies creating easements if there is a standard form which everyone knows and which is regarded as fair- and the standard forms are generally fair.
But not everyone wants to use them. The worst offender here is surprisingly government agencies. It is even more surprising when you remember that it is the government which drafted these standard easements and made them a schedule to the Conveyancing Act.
A prime example are the energy authorities. I’ll take what was Energy Australia as a representative. It was renamed Ausgrid by one of the last acts of the Labor government before the March election.
The standard form of easement for electricity purposes in favour of a government body is
1 The body having the benefit of this easement may:
(a) transmit electricity through each lot burdened, but only within the site of this easement, and
(b) do anything reasonably necessary for that purpose, including:
• entering the lot burdened, and
• taking anything on to the lot burdened, and
• carrying out work, such as constructing, placing, repairing or maintaining poles,
wires, conduits and equipment.
2 In exercising those powers, the body having the benefit of this easement must:
(a) ensure all work is done properly, and
(b) cause as little inconvenience as is practicable to the owner and any occupier of the lot burdened, and
(c) cause as little damage as is practicable to the lot burdened and any improvement on it,
and
(d) restore the lot burdened as nearly as is practicable to its former condition, and
(e) make good any collateral damage.
However Energy Australia’s easement is for electricity and other purposes and runs to several A4 pages. There are two major differences between it and the standard form (as well as a host of minor ones). The first of these is that the standard easement permits The body having the benefit of this easement ie the electricity supplier- Energy Australia.
But the Energy Australia easement provides that Energy Australia and all persons which it authorises may...
That is Energy Australia can let others have the same rights as it itself does.
The second major change is that it allows equipment for conveying signals to be installed on the easement .
Signals are defined very widely.
To my mind the combination of this allows Energy Australia to permit a telco ( a person which it authorises) to use the site of an Energy Australia easement for the construction of a mobile phone tower (equipment for conveying signals)
And Energy Australia's practise is to get owners signed up to their agreement before that owner has had a chance to seek legal advice.
A recent article in the Sydney Morning Herald told of the unfortunate case of a Sydney resident whose land was subject to such an easement. Energy Australia was building a tower which the resident said would take $40,000 from the value of his property.
I've tried to negotiate with Energy Australia’s solicitors after clients have signed the agreement.
They said that Energy Australia needed to be able to transmit signals for the purpose of electricity distribution. My reply was:
Firstly, that if that were so then it would be part of the things allowed under the standard form Easement. It allows Energy Australia to do “anything reasonably necessary” for the purpose of transmitting electricity. Operating signals for its distribution network would be part of what is reasonably necessary.
Secondly, if Energy Australia were to agree to limit its transmission of signals to those it needs for its own distribution of Electricity purposes then I would recommend that you would agree to its standard form.
The Solicitor declined to do either of those things.
Be warned.
But not everyone wants to use them. The worst offender here is surprisingly government agencies. It is even more surprising when you remember that it is the government which drafted these standard easements and made them a schedule to the Conveyancing Act.
A prime example are the energy authorities. I’ll take what was Energy Australia as a representative. It was renamed Ausgrid by one of the last acts of the Labor government before the March election.
The standard form of easement for electricity purposes in favour of a government body is
1 The body having the benefit of this easement may:
(a) transmit electricity through each lot burdened, but only within the site of this easement, and
(b) do anything reasonably necessary for that purpose, including:
• entering the lot burdened, and
• taking anything on to the lot burdened, and
• carrying out work, such as constructing, placing, repairing or maintaining poles,
wires, conduits and equipment.
2 In exercising those powers, the body having the benefit of this easement must:
(a) ensure all work is done properly, and
(b) cause as little inconvenience as is practicable to the owner and any occupier of the lot burdened, and
(c) cause as little damage as is practicable to the lot burdened and any improvement on it,
and
(d) restore the lot burdened as nearly as is practicable to its former condition, and
(e) make good any collateral damage.
However Energy Australia’s easement is for electricity and other purposes and runs to several A4 pages. There are two major differences between it and the standard form (as well as a host of minor ones). The first of these is that the standard easement permits The body having the benefit of this easement ie the electricity supplier- Energy Australia.
But the Energy Australia easement provides that Energy Australia and all persons which it authorises may...
That is Energy Australia can let others have the same rights as it itself does.
The second major change is that it allows equipment for conveying signals to be installed on the easement .
Signals are defined very widely.
To my mind the combination of this allows Energy Australia to permit a telco ( a person which it authorises) to use the site of an Energy Australia easement for the construction of a mobile phone tower (equipment for conveying signals)
And Energy Australia's practise is to get owners signed up to their agreement before that owner has had a chance to seek legal advice.
A recent article in the Sydney Morning Herald told of the unfortunate case of a Sydney resident whose land was subject to such an easement. Energy Australia was building a tower which the resident said would take $40,000 from the value of his property.
I've tried to negotiate with Energy Australia’s solicitors after clients have signed the agreement.
They said that Energy Australia needed to be able to transmit signals for the purpose of electricity distribution. My reply was:
Firstly, that if that were so then it would be part of the things allowed under the standard form Easement. It allows Energy Australia to do “anything reasonably necessary” for the purpose of transmitting electricity. Operating signals for its distribution network would be part of what is reasonably necessary.
Secondly, if Energy Australia were to agree to limit its transmission of signals to those it needs for its own distribution of Electricity purposes then I would recommend that you would agree to its standard form.
The Solicitor declined to do either of those things.
Be warned.
Sunday, March 13, 2011
A problem with "Standard" easements
Since the mid 1960s there has been a standard contract for the sale of land. More recently there has been a standard contract for the sale of businesses. New editions are prepared about every five years by the Law Society and the Real Estate Institute and take into account new legislation, court cases and suggestions from solicitors, real estate agents and some government departments. Just about everyone uses them. There are many advantages, they are revised often, so they are up to date; they are well known, so people not only know the clauses but also what the courts have said about them, they are designed to be fair to all the parties concerned.
There are also several standard leases- some prepared by the Law Society, some by the Real Estate Institute They haven’t been quite as successful perhaps because it is harder to design a lease that will fit all purposes.
There are also standard easements terms: the first set of these was written many years ago and appear as a schedule in the Conveyancing Act. Since then others have been added with more up to date language. Easements are generally a right by a neighbouring owner over another owners property- perhaps the most common is a right of way. Others include easements allowing one owner to pipe waterthrough the neighbour’s land, to carry electricity wires through the neighbour’s l land, for support of a building, even for recreation. There are many other examples and only the most common have been given a standard form. Many solicitors use them widely. Again they have most of the advantages of the standard contracts- they are updated, (though once an easement in a particular form is created it stays in that form until the parties agree to change it –if they ever do), they are designed to be fair and court cases establish the meaning.
Or rather they did have those advantages. Because recently some court cases have greatly changed the meaning of the most common – the easement for a right of way.
Until recently the law was (as the standard textbook on Land Law in Australia said)the document creating the easement is construed according to the natural meaning of its words, read in the light of circumstances existing at the time of the grant. This reflects the now settled principle that “interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the grant
Two examples of this will show what it means. A famous English case involved a right of way allowing access ‘at all times and for all purposes” over a rural laneway 9 ft wide. The court noting that at the time the easement was created the land was farming said the right did not allow buses to be driven along it –even though the land use had changed; a bus company having bought the land benefited by the easement . It wanted to use the land as a depot. It lost.
A second more recent case involved two adjoining commercial blocks. One had an easement over the other again for … “for all purposes connected with the use and enjoyment “ of the land benefited which was used as a fruit shop. The delivery drivers wanted to park their vehicles on the right of way while loading and unloading.
The Queensland Court of Appeal held there was no right to stop to load and unload becasue. Crucial to their decision was a finding that, at the time the easement was granted (1955), the land benefited by the easement was not built on to the extent that it now was. The right of way ran to the rear of the dominant land, and in 1955 the rear area was undeveloped. Vehicles using the right of way could (in 1955) enter the dominant land and load and unload; there was no need for them (in 1955) to stop to load and unload on the right of way itself.
And that was the quite clear law- you looked at the circumstances – including the land use- at the time the easement was created.
But not any more. in Sertari Pty Ltd v Nirimba Developments Pty Ltd the NSW Court of Appeal said the only things to take into account are the document that created the easement, the plan of the land the the pysical characteristics of the benefited and burdened land.
That case shows the difference and also the enormous problems this change has created for people whose land is burdened by an easement.
The easement was created over a hotel car park at to provide an secondary route to a Telecom installatoin on what was then Schofields Aerodrome. The aerodrome was owned by the Commonwealth government and used as a back up to Richmond RAAF base.
The easement required the owner of the land burdened to pay the costs of maintaining the access way. The council had required the easement to be created as a condition of the hotel development
Recently the aerodrome was sold, subdivided and the land remaining as benefited was being redeveloped as a medium density housing estate with 236 homes on about 2ha. The council rejected the development, partly because the easement would be the only access and the hotel owner objected to the use (it would stop a lot of patrons parking in the parking area. Such a busy road would also create problems for pedestrians- not only hotel patrons. . The developer successfully appealed against the hotel owners refusal to the court of appeal. IT said that the easement was one which allowed access for all purposes. The court said in considering the easement you could not take into account the history (as had been done in previous cases) and that the hotel owner had to agree because it was a right of way for all purposes. It also said that it was not interested in whatever traffic problems its decision might cause.
Some links.
The Conveyancing Act Easements
Easements in gross- for government departments http://www.austlii.edu.au/au/legis/nsw/consol_act/ca1919141/sch4a.html
“Normal easements” for adjoining landowners http://www.austlii.edu.au/au/legis/nsw/consol_act/ca1919141/sch8.html
Sertari Pty Ltd v Nirimba Developments Pty Ltd
http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWCA/2007/324.html?stem=0&synonyms=0&query=title(Sertari%20Pty%20Ltd%20near%20Nirimba%20Developments%20Pty%20Ltd%20)
There are also several standard leases- some prepared by the Law Society, some by the Real Estate Institute They haven’t been quite as successful perhaps because it is harder to design a lease that will fit all purposes.
There are also standard easements terms: the first set of these was written many years ago and appear as a schedule in the Conveyancing Act. Since then others have been added with more up to date language. Easements are generally a right by a neighbouring owner over another owners property- perhaps the most common is a right of way. Others include easements allowing one owner to pipe waterthrough the neighbour’s land, to carry electricity wires through the neighbour’s l land, for support of a building, even for recreation. There are many other examples and only the most common have been given a standard form. Many solicitors use them widely. Again they have most of the advantages of the standard contracts- they are updated, (though once an easement in a particular form is created it stays in that form until the parties agree to change it –if they ever do), they are designed to be fair and court cases establish the meaning.
Or rather they did have those advantages. Because recently some court cases have greatly changed the meaning of the most common – the easement for a right of way.
Until recently the law was (as the standard textbook on Land Law in Australia said)the document creating the easement is construed according to the natural meaning of its words, read in the light of circumstances existing at the time of the grant. This reflects the now settled principle that “interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the grant
Two examples of this will show what it means. A famous English case involved a right of way allowing access ‘at all times and for all purposes” over a rural laneway 9 ft wide. The court noting that at the time the easement was created the land was farming said the right did not allow buses to be driven along it –even though the land use had changed; a bus company having bought the land benefited by the easement . It wanted to use the land as a depot. It lost.
A second more recent case involved two adjoining commercial blocks. One had an easement over the other again for … “for all purposes connected with the use and enjoyment “ of the land benefited which was used as a fruit shop. The delivery drivers wanted to park their vehicles on the right of way while loading and unloading.
The Queensland Court of Appeal held there was no right to stop to load and unload becasue. Crucial to their decision was a finding that, at the time the easement was granted (1955), the land benefited by the easement was not built on to the extent that it now was. The right of way ran to the rear of the dominant land, and in 1955 the rear area was undeveloped. Vehicles using the right of way could (in 1955) enter the dominant land and load and unload; there was no need for them (in 1955) to stop to load and unload on the right of way itself.
And that was the quite clear law- you looked at the circumstances – including the land use- at the time the easement was created.
But not any more. in Sertari Pty Ltd v Nirimba Developments Pty Ltd the NSW Court of Appeal said the only things to take into account are the document that created the easement, the plan of the land the the pysical characteristics of the benefited and burdened land.
That case shows the difference and also the enormous problems this change has created for people whose land is burdened by an easement.
The easement was created over a hotel car park at to provide an secondary route to a Telecom installatoin on what was then Schofields Aerodrome. The aerodrome was owned by the Commonwealth government and used as a back up to Richmond RAAF base.
The easement required the owner of the land burdened to pay the costs of maintaining the access way. The council had required the easement to be created as a condition of the hotel development
Recently the aerodrome was sold, subdivided and the land remaining as benefited was being redeveloped as a medium density housing estate with 236 homes on about 2ha. The council rejected the development, partly because the easement would be the only access and the hotel owner objected to the use (it would stop a lot of patrons parking in the parking area. Such a busy road would also create problems for pedestrians- not only hotel patrons. . The developer successfully appealed against the hotel owners refusal to the court of appeal. IT said that the easement was one which allowed access for all purposes. The court said in considering the easement you could not take into account the history (as had been done in previous cases) and that the hotel owner had to agree because it was a right of way for all purposes. It also said that it was not interested in whatever traffic problems its decision might cause.
Some links.
The Conveyancing Act Easements
Easements in gross- for government departments http://www.austlii.edu.au/au/legis/nsw/consol_act/ca1919141/sch4a.html
“Normal easements” for adjoining landowners http://www.austlii.edu.au/au/legis/nsw/consol_act/ca1919141/sch8.html
Sertari Pty Ltd v Nirimba Developments Pty Ltd
http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWCA/2007/324.html?stem=0&synonyms=0&query=title(Sertari%20Pty%20Ltd%20near%20Nirimba%20Developments%20Pty%20Ltd%20)
Sunday, March 6, 2011
I last wrote about how seventeenth Century English history remains important in Australia. Then I wrote about the results of the English Civil War and how it led to a stronger division between the judicial and the executive branches of government. This time I look at a more commercial example and periods both before and after the Civil War.
The opening paragraph of the High Court judgement in Cadia Holdings v The State of New South Wales is
In 1568, an English court held that the Crown had the prerogative right to mines of gold and silver and other metals, such as copper, with which gold or silver in those mines was mixed.1 In a context of constitutional upheaval, that right was modified, in favour of the owners of base-metal mines, by an Act of the English Parliament in 1688.2 It was modified again in 1693.3 Those events, which occurred more than three centuries ago, determine today the amount of royalties payable to the New South Wales Minister for Mineral Resources in respect of copper mined by Cadia Holdings Pty Ltd from land near Orange.
Today the best known part of the royal prerogative is the governor’s reserve powers because –at least here- most of the prerogative is exercised by the executive government- Cabinet and public servants acting –directly or indirectly- on instructions from the Cabinet. And that was true even in 1568, the reigning monarch Queen Elizabeth I didn’t herself mine gold. She had the right to, she charged a price – which even today we call a royalty- to allow others to do so.
Many reasons were given for the King retaining ownership of gold and silvers- the most important being that in those days currency was either issued in gold and silver. Even after paper money was issued the paper notes were able to be converted to gold until 1930 in Australia and later is some other countries. Up to 1966 when decimal currency was introduced the ‘silver’ coins – the threepence, sixpence, shilling and florin were made from silver alloy. And even the first 50c coin was silver alloy (it had so much silver that melted down and sold for its silver content it was actually worth more than 50c for a while)
In England only gold and silver, and metals with which the gold and silver were mixed in the mines were the subject of the prerogative. All other minerals- and metals like copper mined where no gold was mined- belonged to the owner of the land in which the mineral was found. And so the owner could charge the ‘royalty’ not the king. This is unlike the situation in most of Europe- where all minerals belonged to the King. Some economic historians see this difference as being one of the main reasons the Industrial Revolution started in England.
In the early days of the colony the same rules applied- at least to the most common mineral mined in those days- coal and even today some landowners in the Valley also own the coal rights and can charge a royalty.
But to return to the constitutional upheavals and Cadia Holdings. In 1688 the Roman Catholic and absolutist King James II was overthrown and his Protestant son in law became King William III. One of the reasons for this was again an interference with the courts. James II used (his opponents said he abused) his prerogative power of granting pardons to people who broke the law. Even today it is the Governor who pardons people wrongly convicted of a crime or who give the police help in investigating crimes when they themselves have been accomplices.
James II gave wholesale pardons to people for all sorts of acts and ‘dispensed’ with some of the laws which imposed qualifications on people to hold public office or be elected to local government. People were concerned that he was ‘stacking’ local government bodies, juries and so on with his own supporters and that in time would lead to parliament itself being stacked.
He was removed by the “Glorious Revolution” and as part of the constitutional changes public servants were forbidden to stand for parliament- which today remains in section 44 of the Commonwealth Constitution
Another change to the law at time meant that Cadia Holdings did not have to pay eight million in royalties to the State Government.
James II had tried to become financially independent of Parliament so that- to take another complaint against him- he was able to afford a large standing army which people felt he would use to oppress them. The prerogative incomes- such as royalties were not (at least then) controlled by parliament, so that an act which exempted “mines of copper” from the prerogative reduced the income the King could get without parliamentary help. And that is what the 1688 Act did.
But the mine at Orange was one containing both gold and copper. The State government said (and the NSW Court of Appeal agreed with it) that , that the ore fthe Cadia mines contained gold, the copper could not be recovered from the mines separately from the gold; and the Crown’s ownership of the gold was not affected by the 17th-century statute so that the copper was part of a ‘gold mine’ and so liable to the higher rate of royalties.
Or to put it another way the mine was a gold-copper mine, not a copper mine with a small amount of gold in it (and a copper mine with traces of gold would be exempt under the 1688 statute
Cadia’s argument was that the Act exempted copper (or any other mineral) when it was mixed with gold or silver. And so the High Court found: that the 1688 Act allowed a dual categorisation of mines as both gold mines and copper mines. And a mine containing a substantial amount of copper and a substantial amount of gold is both a copper mine and a gold mine. So that the royalties for the copper were assessed on the lower rate of a privately owned mineral.
The opening paragraph of the High Court judgement in Cadia Holdings v The State of New South Wales is
In 1568, an English court held that the Crown had the prerogative right to mines of gold and silver and other metals, such as copper, with which gold or silver in those mines was mixed.1 In a context of constitutional upheaval, that right was modified, in favour of the owners of base-metal mines, by an Act of the English Parliament in 1688.2 It was modified again in 1693.3 Those events, which occurred more than three centuries ago, determine today the amount of royalties payable to the New South Wales Minister for Mineral Resources in respect of copper mined by Cadia Holdings Pty Ltd from land near Orange.
Today the best known part of the royal prerogative is the governor’s reserve powers because –at least here- most of the prerogative is exercised by the executive government- Cabinet and public servants acting –directly or indirectly- on instructions from the Cabinet. And that was true even in 1568, the reigning monarch Queen Elizabeth I didn’t herself mine gold. She had the right to, she charged a price – which even today we call a royalty- to allow others to do so.
Many reasons were given for the King retaining ownership of gold and silvers- the most important being that in those days currency was either issued in gold and silver. Even after paper money was issued the paper notes were able to be converted to gold until 1930 in Australia and later is some other countries. Up to 1966 when decimal currency was introduced the ‘silver’ coins – the threepence, sixpence, shilling and florin were made from silver alloy. And even the first 50c coin was silver alloy (it had so much silver that melted down and sold for its silver content it was actually worth more than 50c for a while)
In England only gold and silver, and metals with which the gold and silver were mixed in the mines were the subject of the prerogative. All other minerals- and metals like copper mined where no gold was mined- belonged to the owner of the land in which the mineral was found. And so the owner could charge the ‘royalty’ not the king. This is unlike the situation in most of Europe- where all minerals belonged to the King. Some economic historians see this difference as being one of the main reasons the Industrial Revolution started in England.
In the early days of the colony the same rules applied- at least to the most common mineral mined in those days- coal and even today some landowners in the Valley also own the coal rights and can charge a royalty.
But to return to the constitutional upheavals and Cadia Holdings. In 1688 the Roman Catholic and absolutist King James II was overthrown and his Protestant son in law became King William III. One of the reasons for this was again an interference with the courts. James II used (his opponents said he abused) his prerogative power of granting pardons to people who broke the law. Even today it is the Governor who pardons people wrongly convicted of a crime or who give the police help in investigating crimes when they themselves have been accomplices.
James II gave wholesale pardons to people for all sorts of acts and ‘dispensed’ with some of the laws which imposed qualifications on people to hold public office or be elected to local government. People were concerned that he was ‘stacking’ local government bodies, juries and so on with his own supporters and that in time would lead to parliament itself being stacked.
He was removed by the “Glorious Revolution” and as part of the constitutional changes public servants were forbidden to stand for parliament- which today remains in section 44 of the Commonwealth Constitution
Another change to the law at time meant that Cadia Holdings did not have to pay eight million in royalties to the State Government.
James II had tried to become financially independent of Parliament so that- to take another complaint against him- he was able to afford a large standing army which people felt he would use to oppress them. The prerogative incomes- such as royalties were not (at least then) controlled by parliament, so that an act which exempted “mines of copper” from the prerogative reduced the income the King could get without parliamentary help. And that is what the 1688 Act did.
But the mine at Orange was one containing both gold and copper. The State government said (and the NSW Court of Appeal agreed with it) that , that the ore fthe Cadia mines contained gold, the copper could not be recovered from the mines separately from the gold; and the Crown’s ownership of the gold was not affected by the 17th-century statute so that the copper was part of a ‘gold mine’ and so liable to the higher rate of royalties.
Or to put it another way the mine was a gold-copper mine, not a copper mine with a small amount of gold in it (and a copper mine with traces of gold would be exempt under the 1688 statute
Cadia’s argument was that the Act exempted copper (or any other mineral) when it was mixed with gold or silver. And so the High Court found: that the 1688 Act allowed a dual categorisation of mines as both gold mines and copper mines. And a mine containing a substantial amount of copper and a substantial amount of gold is both a copper mine and a gold mine. So that the royalties for the copper were assessed on the lower rate of a privately owned mineral.
Monday, September 7, 2009
What is a law anyway –2
Last time I wrote about legal theory- how to recognise a valid law.
Just in case you thought it was a strange theoretical question, only last week a United Nations official has been criticising the current "intervention" in Aboriginal communities in northern Australia as illegal- he says its discriminatory and against international law. What he will do about it is unclear but a Queensland Shire council wants to use his finding in their case to renew an Aboriginal community’s tavern’s liquor license.
And this week ex Vice President Cheney has been criticising a probe into whether the CIA used torture in interrogating people as being ‘political’ because he says its directed to see whether President Bush authorised it. But the probe is designed to find whether the CIA breached human right standards.
Now neither of these fit into the two models of laws I have written about so far.
First of all the intervention. Taking the first model- what the sovereign commands is law: Australia is a nation- Australia’s parliament is (under the constitution) sovereign so whatever Parliament says is law is indeed law (subject to constitutional challenges) .So in turn whatever the United Nations has to say shouldn’t affect us. Its just not law. Taking the second model –law is what officials recognise as law: Australian officials recognise the Parliament has made laws for the Aboriginal communities and act accordingly. Indeed it’s the very actions that are being criticised as illegal-as against international law..
Now look at the CIA actions. Likewise the USA is a nation- its constitution is a bit more complicated because of the differing functions of the President and the Congress but at least to do with the CIA we can say that whatever the "Executive" (the President) says is law providing it complies with prior Acts of Congress is law. Taking the second model again , one of the main purposes (And the purpose Mr Cheney was complaining about) of the enquiry is to see whether the CIA officials recognised the President’s orders and tortured the prisoners Under both these models its only if the CIA staff tortured the prisoners on their own initiative or if what they did was contrary to a law passed by Congress would they be liable. If the President (or someone like Mr Cheney) ordered the torture, then the president or Mr Cheney would be liable.
But that’s not the case, that is not how law in fact works. And the best example of this is ‘war crimes.’ Whether it be the Nuremburg trials of Nazis after world war two, or whether it be the current trials in The Hague concerning the former Yugoslavia the law appeals to something external. Whether the German law authorised the killing of the disabled, Freemasons, Gypsies, Jews or whether President Miloslevic authorised the paramilitary groups in Bosnia to do what they did, someone – is saying it was legally wrong.
And so whoever it is who is accused – General Jodl at Nuremburg in 1946 or Ramush Haradinaj at the Hague last week, - is standing trial with prosectors and defence lawyers, rules of evidence, examination of witnesses and in short the whole system we know as ‘criminal justice.’
But it cannot be criminal justice if law is what the sovereign commands. At the time the acts were committed what passed for law in Germany, and (probably)in Bosnia allowed all the acts. Nor can it be justice if law is directed to officials and the test for law is what the officials recognise as law- because in Germany at the time the acts were committed the officials recognised the Nazi laws (it might be a bit harder to say that about Bosnia- if only because there don’t seem to have been many officials left apart from the armies and paramilitaries).
So to be able to bring war criminals to trial there has to be an appeal to something outside the normal legal system-some underlying principle of right and wrong. And here is where the proposed Victorian laws I wrote about last time has it the wrong way round. Those people are trying to make the law make moral decisions. Its really morality that makes the law.
So that because we humans recognise that killing people because of their religion or race or killing handicapped people is wrong we have laws that say that that is wrong.
Next fortnight I shall give some more examples of how morality has made the law and then try to draw some conclusions from all of this.
Links
ABC news reporting the UN’s finding http://www.abc.net.au/news/stories/2009/08/27/2668915.htm?site=news
ABC news reporting Arakun shire council’s appeal http://www.abc.net.au/news/stories/2009/08/31/2671913.htm?site=news
ABC news reporting Cheney’s comments (also note that Sen McCain says torture gets you nowhere and is a bad policy) http://www.abc.net.au/news/stories/2009/08/31/2671247.htm
The Bosnian War Crimes Tribunal http://www.icty.org/
Just in case you thought it was a strange theoretical question, only last week a United Nations official has been criticising the current "intervention" in Aboriginal communities in northern Australia as illegal- he says its discriminatory and against international law. What he will do about it is unclear but a Queensland Shire council wants to use his finding in their case to renew an Aboriginal community’s tavern’s liquor license.
And this week ex Vice President Cheney has been criticising a probe into whether the CIA used torture in interrogating people as being ‘political’ because he says its directed to see whether President Bush authorised it. But the probe is designed to find whether the CIA breached human right standards.
Now neither of these fit into the two models of laws I have written about so far.
First of all the intervention. Taking the first model- what the sovereign commands is law: Australia is a nation- Australia’s parliament is (under the constitution) sovereign so whatever Parliament says is law is indeed law (subject to constitutional challenges) .So in turn whatever the United Nations has to say shouldn’t affect us. Its just not law. Taking the second model –law is what officials recognise as law: Australian officials recognise the Parliament has made laws for the Aboriginal communities and act accordingly. Indeed it’s the very actions that are being criticised as illegal-as against international law..
Now look at the CIA actions. Likewise the USA is a nation- its constitution is a bit more complicated because of the differing functions of the President and the Congress but at least to do with the CIA we can say that whatever the "Executive" (the President) says is law providing it complies with prior Acts of Congress is law. Taking the second model again , one of the main purposes (And the purpose Mr Cheney was complaining about) of the enquiry is to see whether the CIA officials recognised the President’s orders and tortured the prisoners Under both these models its only if the CIA staff tortured the prisoners on their own initiative or if what they did was contrary to a law passed by Congress would they be liable. If the President (or someone like Mr Cheney) ordered the torture, then the president or Mr Cheney would be liable.
But that’s not the case, that is not how law in fact works. And the best example of this is ‘war crimes.’ Whether it be the Nuremburg trials of Nazis after world war two, or whether it be the current trials in The Hague concerning the former Yugoslavia the law appeals to something external. Whether the German law authorised the killing of the disabled, Freemasons, Gypsies, Jews or whether President Miloslevic authorised the paramilitary groups in Bosnia to do what they did, someone – is saying it was legally wrong.
And so whoever it is who is accused – General Jodl at Nuremburg in 1946 or Ramush Haradinaj at the Hague last week, - is standing trial with prosectors and defence lawyers, rules of evidence, examination of witnesses and in short the whole system we know as ‘criminal justice.’
But it cannot be criminal justice if law is what the sovereign commands. At the time the acts were committed what passed for law in Germany, and (probably)in Bosnia allowed all the acts. Nor can it be justice if law is directed to officials and the test for law is what the officials recognise as law- because in Germany at the time the acts were committed the officials recognised the Nazi laws (it might be a bit harder to say that about Bosnia- if only because there don’t seem to have been many officials left apart from the armies and paramilitaries).
So to be able to bring war criminals to trial there has to be an appeal to something outside the normal legal system-some underlying principle of right and wrong. And here is where the proposed Victorian laws I wrote about last time has it the wrong way round. Those people are trying to make the law make moral decisions. Its really morality that makes the law.
So that because we humans recognise that killing people because of their religion or race or killing handicapped people is wrong we have laws that say that that is wrong.
Next fortnight I shall give some more examples of how morality has made the law and then try to draw some conclusions from all of this.
Links
ABC news reporting the UN’s finding http://www.abc.net.au/news/stories/2009/08/27/2668915.htm?site=news
ABC news reporting Arakun shire council’s appeal http://www.abc.net.au/news/stories/2009/08/31/2671913.htm?site=news
ABC news reporting Cheney’s comments (also note that Sen McCain says torture gets you nowhere and is a bad policy) http://www.abc.net.au/news/stories/2009/08/31/2671247.htm
The Bosnian War Crimes Tribunal http://www.icty.org/
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