The Making of Australian Property Law
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.
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acres Administration of Intestate Alfred Stephen alienation allodial argued aristocratic Attorney-General v Brown August Australian property law capitalist century New South coal colonial New South concept of property Consequently conservative context conveyancing Court Crown Lands defendant dower egalitarianism England English law EP Thompson evidence existing fee simple feudal freehold grant implications inheritance interest intestacy Intestate Estates Land Acts land transfer landed property law in Australia law of real lease leasehold Liens on Wool logic mid-19th century minimum upset price monopoly mortgage Norton noted owner ownership personal property political possession primogeniture Property Law Bill proprietors purchaser question Real Property Law recognised registration of title reservation Robertson Land Acts Select Committee settlement settler Sir Alfred Stephen socage social society South Wales Legislative squatters squatting statute Statute of Tenures Stephen CJ Sydney Morning Herald tenant tenure Trooper Votes and Proceedings Wales Legislative Council waste lands Windeyer