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In 1847, in one of the most important cases in Australian legal history, the Chief Justice of NSW, Sir Alfred Stephen, handed down a decision that would have profound implications for both the development of Australian property law and the property rights of the Aboriginal peoples of Australia. The case was Attorney General v Brown, and in his decision Stephen CJ ruled that the laws of property in Australia were governed by feudal principles. The shadow cast by Attorney General v Brown has been a long one, stretching down to the decision in Mabo and beyond. Judicial thinking and much legal scholarship continues to emphasise a connection between the feudal origins of the English law and the state of contemporary Australian property law, thereby perpetuating a "nostalgic" view of Australian property law. This book, in contrast, argues that the feudal imprint on property in Australia had been "washed away" by the early 1860s and that the decades of the early nineteenth century witnessed the making of a distinct Australian property law. Egalitarianism, rather than feudalism, this book argues, shaped the emergence of Australian property law. This book situates legal development in its social and political context, re-evaluating the relationship between political ideas, social values and law reform in early Australia.
The Boundaries of Australian Property Law offers a unique perspective on real property law in Australia. As the overwhelming majority of land interests in Australia now fall under the Torrens title system, this book's particular focus on the development and operation of the Torrens system in Australia is both timely and welcome. Addressing the prescribed Priestly 11 requirements for a property law subject in Australia, this informative and academically rigorous book includes carefully selected statutory material and case law from all Australian jurisdictions, as well as the United Kingdom. The general law system is also discussed and referred to where necessary, to give context and depth to the analysis of real property law. Written by prominent real property law academics from law schools around Australia, and edited by Hossein Esmaeili and Brendan Grigg, this text is a modern and much-needed addition to real property law literature.
Designed to help the reader gain a deeper understanding of property law by explaining (in plain language) the analytical framework of the subject.
Australian Property Law - Cases, Materials and Analysis contains important case & legislation extracts from Australian jurisdictions with detailed discussion. Dr Samantha Hepburn is Associate Professor in the Faculty of Business and Law at Deakin University, Australia.
Real property in the form of investment, ownership and use pervades almost every aspect of daily lives and represents over 40% of Australia’s wealth. Such assets do not exist in isolation – they are dynamic and forever evolving, impacted by a range of physical, economic, demographic, legal and other forces. Consequently, a true appreciation of individual assets and of the property sector as a whole demands an understanding of both the assets themselves and the context and markets in which they exist. The sector is complex and, on the face of it, confusing. It is however, not without logic and underlying themes and principles. This book provides a wider understanding of how the real property sector works. It covers topics such as the nature of real property and its functions, economic drivers, valuation principles, legal and tenure parameters, property taxation, land development and subdivision, asset and property management and sustainability – all critical components in this complex and critically important sector. It provides a wide and balanced perspective for experienced practitioners, investors, students and anyone involved in property decision-making or wishing to secure a deeper understanding of these areas. The book integrates research-based theory with practical application and first-hand insights into a sector that underpins the Australian economy, its communities and its sustainability.
The monograph covers main aspects of the land and property law applicable in England, Wales, Northern Ireland, British Overseas Territories, Crown Dependencies, some countries of the Сommonwealth Caribbean, the Republic of Ireland, the Republic of Cyprus, the Commonwealth of Australia, New Zealand and island countries of Oceania, the United States of America, and Canada. Concepts which consider legal notions “land”, “real property”, “legal real estate” meaning are analyzed. Characteristics of titles to land and interests as to the land, of the law “landlord - tenant”, of the concurrent ownership are given. The essence of the doctrines of violating the boundaries of ownership, causing private inconveniences, taking possession of land by a person who does not have a title to it is revealed are considered. The monograph is targeted to students, graduate students and teachers of law schools, employees of legislative, executive and judicial authorities, as well as for all those interested in land, civil law and comparative legal studies.
Featuring contributions from leading lawyers, historians and social scientists, this path-breaking volume explores encounters of laws, people, and places in Australia since 1788. Its chapters address three major themes: the development of Australian settler law in the shadow of the British Empire; the interaction between settler law and First Nations people; and the possibility of meaningful encounter between First laws and settler legal regimes in Australia. Several chapters explore the limited space provided by Australian settler law for respectful encounters, particularly in light of the High Court's particular concerns about the fragility of Australian sovereignty. Tracing the development of a uniquely Australian law and the various contexts that shaped it, this volume is concerned with the complexity, plurality, and ambiguity of Australia's legal history.
Little attention has been paid to the development of Australian private law throughout the first half of the twentieth century. Using the law of tort as an example, Mark Lunney argues that Australian contributions to common law development need to be viewed in the context of the British race patriotism that characterised the intellectual and cultural milieu of Australian legal practitioners. Using not only primary legal materials but also newspapers and other secondary sources, he traces Australian developments to what Australian lawyers viewed as British common law. The interaction between formal legal doctrine and the wider Australian contexts in which that doctrine applied provided considerable opportunities for nuanced innovation in both the legal rules themselves and in their application. This book will be of interest to both lawyers and historians keen to see how notions of Australian identity have contributed to the development of an Australian law.
This landmark book unveils the history of defending Australia's natural environment and examines the subject's legal and political contexts from the birth of the nation in 1901 until the advent of the so-called modern era of environmental regulation in the late 1960s. It rejects the mythology that Australia lacked environmental law before the late 1960s in revealing how many of today's environmental laws, from pollution control to nature conservation, emerged from precedents or events much earlier in the 20th century. This history however reveals a discrepancy between lawmakers' greater efficacy to exploit rather than protect the environment, a discrepancy that grew as nature's backlash intensified in a rapidly degrading continent colonised to build the Australian nation. In exploring these dynamics, the book offers a rich tapestry of case studies illustrated with historic photographs that show the origins of Australia's environmental laws and how they borrowed from international precedents or furnished lessons for other nations. Through its multi-disciplinary enquiry, the book offers scholars and students of environmental law, legal history and the environmental humanities a unique story about the failures and successes in the making of environmental law.