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 Property Rights

 

Freehold land or Fee Simple. From HCA Isaacs 1923 and Kirby 1998(Sept)

 In the case of Vigers v. Dean of St. Paul's[46] Henry VIII. and Charles II., as well as other Sovereigns, were alleged to be seised of lands "as of fee." In Challis's Real Property, 3rd ed., p. 218, it is stated with perfect accuracy:-

"In the language of the English law, the word fee signifies an estate of inheritance as distinguished from a less estate; not, as in the language of the feudists, a subject of tenure as distinguished from an allodium. Allodium being wholly unknown to English law, the latter distinction would in fact have no meaning. A fee simple is the most extensive in quantum, and the most absolute in respect to the rights which it confers, of all estates known to the law. It confers, and since the beginning of legal history it always has conferred, the lawful right to exercise over, upon, and in respect to, the land, every act of ownership which can enter into the imagination, including the right to commit unlimited waste; and, for all practical purposes of ownership, it differs from the absolute dominion of a chattel, in nothing except the physical indestructibility of its subject.

 

High Court Rulings must be enforced by law, 1903 Judiciary Act Section 15

 

High Court rulings -‑ Mabo & Others ‑v‑ Queensland, NSW ‑v‑ Commonwealth

 

Quote from Quick & Garran.

"Not all enactments purporting to be laws made by the Parliament are binding, but all laws made under, in pursuance of, and within the authority conferred by the Constitution, and only those, are binding on the courts, judges, and people. A law in excess of the authority conferred by the Constitution is no law; it is wholly void and inoperative, it confers no rights, it imposes no duties, and it affords no protection. Few know that our laws were taken from Canada, USA and Switzerland etc, for the very interpretation of those laws one must see the court cases won and lost in the highest courts in foreign lands, our forefathers made sure that we got the best laws from the best countries.

 

(5) There is Federal law

         Paragraph 51 of the Australian Constitution limits Federal laws, if 51 does not specifically delegate a power to the Commonwealth then the House of Representatives cannot make laws on those matters. If laws are made they are of no effect and need not be obeyed. Half of the Federal laws have no effect.

 

There is State law

         The States were autonomous, so no single entity could get power but they are subservient to all of the above as reaffirmed in the Legislative standards act which states:

 

S4 of the Legislative Standards Act 1992 as "Fundamental, Principles" which are the principles relating to legislating that underlie a Parliamentary Democracy based an the "Rule of Law"; One of those principles is that legislation should "not adversely affect rights and liberties retrospectively".

 

This means that freehold land acquired under a previous act must continue to have the same rights and privileges that existed under the land act irrespective of amendments to the act. The land, water, air and trees were yours and still are. The Government cannot take your right to use the water, trees, lawfully it is yours to use as you see fit. They do not have a say.

 

Full force of the Australian Constitution is outlined. The Annotated Australian Constitution by Quick & Garran provides us with laws a plenty to prove that the States cannot take control of the soil, water, buildings and vegetation on freehold land and fee simple land.

 

Victorian Legislation

 

The Acts Interpretation Act 1954 defines enactments in force and includes (pages 8 ‑‑ s9 Para 6) (a) A British or NSW act that is in force in as.ppp This means that the Magna Carta 1297 and the Bill of Rights 1689 must be interpreted as written. They are in force and listed as such in the Imperial Acts Application, No 70 of 1980. Every other state has similar legislation listing the enactments that can't be removed.

 

The Acts Interpretation Act also limits the power of the current Government. At page 8 -‑ 9 para 9 (1) a. it stipulates that, an act is to be interpreted as operating to full extent of, but not to exceed, parliaments legislative power.

 

What does it all mean?

 

It means the Politicians cannot seize property, to take control of your property, even if they make laws to that effect. The laws are not valid, it means that the politicians are subservient to the will of the people.

Land held in fee simple was handed down by King James and is incorporated in the "Coronation Oath"; the Queen can't ascend the Throne unless she agrees to uphold the Oath.

 

The full Supreme Court of NSW held that feudal system of land tenure, and with it the principle that land is held "of the Crown" was part of law of New South Wales. Even today a person who owns land is properly described "as holding the land of the Crown in the right of the State of New South Wales."

 

(444) Quia Emptores 1290 and the Tenures Abolition Act 1660 were part of the English law received into New South Wales. It follows that subinfuedation existing in this country. 48 The two statutes were formally repealed, in so far as they applied to New South Wales, by the Imperial Acts Application Act 1969 (NSW). However their substance has been preserved by the same act section 36 provides;

 

"Land held in fee simple of the Crown may be assured in fee simple without license or fine and the person taking under assurance shall hold the land of the Crown in the same manner as the land was held before assurance took effect.

 

Section 37 provides:

All tenures created by the Crown upon any grant in fee simple made after the commencement of this act shall be taken to be in free and common socage without any incident of tenure for the benefit of the Crown.

 

In Queensland they have a land act, similar legislation in Victoria. South Australia and New South Wales, section 21 of the Queensland Land act states that a person holding property in fee simple is assured of holding such property without license and fine.

 

Section 29 of the Queensland Land Act 1974 states that a person holding a parcel of land is assured under fee simple tenure of all the rights of "disponer", and that terminology the disponer is referring to the Crown, so all the rights of the disponer are transferred to the disponee which is the purchaser. That is binding on the Sovereign, Heirs and Successors.

 

So when we look at that in total the Property Law Act tells us that our freehold land is created in fee simple, its created without benefit to the Crown, other than the aforementioned reservations, that as the owners of that property we hold that property without license or fine and we are also assured that each time the land is transferred that all of the rights of the previous owner are transferred to the new owner.

 

I know at times we all complain about paying stamp duty, in fact the payment of stamp duty seems to be a payment contrary to fee simple tenure because it is a title without benefit to the Crown and without license or fine. Stamp duty seems to be a fee.

 

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Authorised by I Dean Mandurang.