Australian Property Law
‘When subjected to close analysis the concept of “property” vanishes into thin air … In the end, the “property” notion, in all its conceptual fragility, is but a shadow of the individual and collective human response to a world of limited resources and attenuated altruism.’ Kevin Gray, ‘Property in Thin Air’ (1991) 50 Cambridge Law Journal 252, 306-307.
What does Professor Gray mean by this? Do you agree with him? How would you describe the notion of ‘property’ as it is understood in Australian law? Discuss using illustrations, especially, decided cases (Australian and other jurisdictions) and legislation. With respect to legislation, prima facie, reference must be to Western Australian legislation; and to other Australian legislation where there is no equivalent WA legislation or for comparison.
Australian Property Law
At the conclusion of his article on property, Gray indicates that the concept of “property” is merely an elusive concept which holds no substantial meaning. Gray indicates that the term property lacks any capacity to provide any priori form of rights. Rather, the term is a vague human response in a world where individuals have to contend with limited resources. It is a means through which individuals can exercise attenuated altruism. This essay presents an evaluation of Gray’s argument in his article, with reference to Australian property law and particularly, the property laws of Western Australia. The essay will explicate that indeed, the term property as understood within a legal framework is a vague conceptualisation whose central purpose is to confer a sense of ownership in individuals.
Property is a conceptual notion, a social construct which has no single concrete meaning. It is a functional term which serves several functions such as inducing a sense of ownership and allocating legal rights to individuals among others. Hepburn highlights the complexity of the term property whereby she indicates that property is a “social dynamic; mutable, mercurial and value laden…” which lies at the core of most of the social activity in the modern world. Gray identifies the vagueness of the term property whereby he notes that it is a relative concept. This relativity occurs in terms of the functional, legal and moral conditions of property. The most articulate example of the relativity of property pertains to intellectual properties which in most cases have a sunset clause.
The vagueness and fluidity of the concept of property is appropriately illustrated by the attempts to define it. The Australian Law Reform Commission (ALRC) notes that “the idea of property is multi-faceted.” This assertion has at least two implications. The first implication is that property is considered primarily as an idea, rather than anything tangible. Other meanings associated with the term emanate from this conceptualisation. The second implication is that as an idea, it is a very diverse one which has different meanings as governed by different contexts. Indeed, the same report goes on to indicate that there are ongoing philosophical and practical interests that continue to moderate what exactly the term property defines. Moreover, within the report, different descriptions are utilised to achieve a protectable position on property. For example, property may be real property, or personal property. Property may also be tangible or intangible. Intangible forms of property comprise elements such as intellectual properties and copyrights.
Another important claim made by Gray is that property is merely an individual and collective response by human beings to a world where resources are limited. Property allows individuals to exercise a sense of ownership. The case of intellectual property rights best corroborates these assertions. Intellectual properties are a form of intangible properties, which were first recognized as personal properties in the early 1800s by statute. Intangible rights are a creation of the law. This approach generally leads to an increase in private property, which has the alternative detrimental outcome of an increase in theft.
From the foregoing discussions, it is evident that property cannot be defined along the nexus of physical possessions, thereby illustrating the utter complexity of this concept. A primary means of understanding property which especially pertains to legal contexts is that property is a bundle of rights. The Australian Law Reform Commission notes that within law, property describes different types of rights that are related to things. In this essence, property is considered to be the bundle of rights that individuals possess in relation to a particular thing nor object. These rights confer upon an individual a legally enforceable entitlement to control the things or objects in question. This thing or object does not necessarily have to be tangible, as is the case with intellectual property. The existence of rights induces a divisibility imperative, whereby property is divisible amongst different individuals on the basis of the rights that these individuals enjoy. The most apt example of this nexus of the property concept is the rights of landlords and tenants. Samantha indicates that the contractual relationship between a landlord and a tenant confers upon the tenant a right to occupy and possess the land or property for a period of time as specified under the terms of agreement between the two parties. According to the Australian Law Reform Commission, the rights arising from tenancy may be contractual in nature. The commission further notes that the rights of a tenancy to land are both proprietary as well as possessory.
An important aspect of property is the capacity of elements to be owned. Gray indicates that not everything is being capable of owned, but that rather, there is a principle of excludability. This principle pertains to whether it is possible for individuals to exercise regulatory control over access to a particular thing.in this context, property then can only be that over which it is possible to exercise regulatory control to access. There are several avenues through which excludability can be attained. They include physical excludability, legal excludability and moral excludability. Physical excludability essentially pertains to the physical or natural laws affecting interactions between physical objects. Thus, where it is physically impossible to exercise excludability over a particular resource, then individuals cannot claim property rights over this resource. Legal excludability is derived from legal imperatives imposed on a particular resource, which consequently exclude individuals from accessing a particular resource. Legal excludability may be achieved through avenues such as contractual protection and intellectual property protection. The final form of excludability of moral excludability, whereby certain resources are morally non-excludable. There are certain resources over which exercising excludability through propertisation is simply impossible. Examples of imperatives under which moral excludability is forbidden include linguistic exclusion and territorial exclusion.
diverse definition of the term property raises important legal questions about
the property rights that individuals possess. At their very core, property
rights emanate from an individual’s ownership of property. These rights,
however, are not absolute, and just like the term property which is relative,
so too are individuals’ rights to property. Western Australia laws on property
recognize property laws as rights pertaining to property in the form of “real
and personal property and any estate or interest therein and any thing or chose
Real and personal property have been defined by the Australian Law Reform
Commission as interests pertaining to interests in land or structures within
that land. Personal property, on the other hand, relates to elements such as
tangible or corporeal elements. Choses in action, on
their part, may include aspects such as intellectual property rights and
contractual rights. Thus, property in the Western Australian context refers to
items over which individuals can exercise excludability.
- Articles/ Books
Gray, Kevin, ‘Property in Thin Air’ (1991) 50 Cambridge Law Journal 252.
Hepburn, Samantha, Australian Principles of Property Law, (Routledge, 2013)
Property Law Act 1969.
Australian Law Reform Commission, Traditional Rights and Freedoms—Encroachments by Commonwealth Laws Report No. 129 (2016).
 Kevin Gray, ‘Property in Thin Air’ (1991) 50 Cambridge Law Journal 252, 306-307.
 Ibid 292-293
 Samantha Hepburn, Australian Principles of Property Law, (Routledge, 2013) 2.
 Gray, above n 1.
 Australian Law Reform Commission, Traditional Rights and Freedoms—Encroachments by Commonwealth Laws Report No. 129 (2016) 462.
 Australian Law Reform Commission, above n 6, 464
 Ibid 462.
 Hepburn, above n 3.
 Australia Law Reform Commission, above n 6 464.
 Hepburn above, n 9 2.
 Ibid 374.
 Australian Law Reform Commission, above n 10 464
 Australian Law Reform Commission, above n 10 274-275.
 Ibid 275-276.
 Property Law Act 1969 5.
 Australian Law Reform Commission, above n 9, 462.