The Federation Press

The Making of Australian Property Law

Overview

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.

Reviews

If you would like to further your understanding of the development of our property law and deepen your understanding of the land rights issues in Australia, then this is the source to which you should turn first. - BJM, Law Society of Tasmania online newsletter, April 2007

...The Making of Australian Property Law is a stimulating and highly enjoyable book, which should be well thumbed by property lawyers and legal historians. It is engaging, insightful, and well argued. It deepens our understanding of our property law jurisprudence, and highlights the peculiarities of certain unique Australian property rights. It explains with a compelling narrative why Australian property law is different. Property and law intersect with social, political and historical factors, and the colonial Australian experience moulded a distinctively Australian property law. - Journal of Australian Colonial History, Vol 11, 2009

Table of Contents

The Ghost of Feudalism
The Empire of Property
The English Inheritance
The Colonial Adaptation
The Pastoralists' Tenure
The Peculiarities of Property
The People’s Question
The Spectre of Egalitarianism
Conclusion

Appendix – Attorney-General v Brown

Of interest...