Completing the Painting: Legislative Innovation and the 'Australianness' of Australian Real Property Law
(2017) 6 Property Law Review 157
23 Pages Posted: 18 Sep 2017
Date Written: September 11, 2017
This article considers legislative innovations in Australian real property law and the role played by legislators through exercises of Parliamentary sovereignty. The legislative role is equal to that of the judiciary in the creation and modification of new forms of property in relation to land. To demonstrate this thesis, the article examines: (i) the “invention” of Crown perpetual and State leasehold interests, rights to occupy, and strata title; (ii) the decoupling of land ownership from riparian rights, and (iii) the ownership of mines and minerals. The true “Australianness” of Australian real property has been produced not only through judge-made law, but also, and equally importantly, through the legislature, which has altered every aspect of how the common law once viewed land as surface, airspace, and subsurface. It is for this reason that judges and legislators must be viewed as co-equal partners in the creation of “Australian” real property law.
Keywords: Real Property Law; Australian Real Property Law; Legislative change of real property law; Crown perpetual and State leaseholds; strata title; water rights; mines and minerals; definition of land
JEL Classification: K1
Suggested Citation: Suggested Citation