Journal of Australian Colonial History: Book Reviews
Vol. 11, 2009
A. R. Buck, The Making of Australian Property Law, The Federation Press, Annandale, 2006, ISBN 978 186287 634 7, pbk, x + 166 pp, $49.95.
In The Making of Australian Property Law, Andrew Buck seeks to place property and law in its uniquely Australian social and political context. Rather than Australian property law being constrained by the 'ghosts' of English feudalism and its consequential doctrines of tenure and estates, Buck asserts that the defining feature of Australian property law since the first half of the nineteenth century has been its egalitarianism.
Feudalism was a hierarchical structure that precluded absolute or allodial ownership of land by anyone except the Crown. Under feudalism, a landholder possessed an estate held from the Crown rather than the land itself. The notion of an estate was an artificial construct devised by lawyers to explain the nature of a person's relationship with land where only the Crown could be sole owner. The importance of feudalism to the development of Australian property law has been greatly overstated according to Buck, and its contemporary shadow continues to exert a disproportionate influence. This argument is persuasively made by a fascinating chapter devoted to the political background behind the landmark 1847 decision of Attorney-General v Brown, cited widely as the foundational authority for feudal doctrine in Australia. By placing Attorney-General v Brown in its historical milieu, and in particular the Crown's conflicted protection of a commercial monopoly, the flaws and misassumptions in the conventional position are laid bare by the author. For the benefit of students and scholars alike, the case is reproduced in an appendix.
The direction changes in the succeeding chapter with an unusual but highly effective discourse on the disjunctive chasm between settler and Indigenous perspectives of property. The synergies between Indigenous dispossession, and the dispossession of English peasants from the commons via the enclosure movement, set the stage for an analysis of the multiple historical forces at work.
Buck argues that property in colonial Australia fulfilled profoundly different functions than in England. Property in the antipodes was recognised early in the nineteenth century as a transferable commodity, a means to acquire wealth largely open to all, and hence egalitarian. In England, by contrast, property represented 'political power, patronage, sinecures and commissions'. Its very nature was élitist, and it was reserved to the landed aristocracy. Principles of English property law, such as the estate tail and primogeniture, entrenched vested interests and preserved the status quo. In Australia, however, these principles faded into societal and legal irrelevance, because free alienability rather than stability was essential to the economic progress of the colonies. These egalitarian imperatives transformed English conveyancing practice into a distinctively Australian form by 1862, when the Torrens system of title by registration was enacted in New South Wales. Torrens title represented a radical Australian response to colonial exigencies. The subsequent analysis of pastoralists' tenure, new property rights such as the wool lien, and the abolition of primogeniture are likewise compelling exemplars of the transformation of colonial perceptions of property and law from their metropolitan antecedents.
The last two chapters are devoted to Buck's dominant theme of the 'logic of egalitarianism', that Australian perceptions of property and law played a critical role in creating wealth and opportunity in colonial Australia, and fostered conditions conducive to democratic values. A simplified conveyancing system thus became the 'people's question', whilst the commoditisation of property enhanced the power of the democratic and entrepreneurial classes to the detriment of English-oriented conservatives. It ends with an amusing quote from Chief Justice Stephen who gloomily observed in evidence to a select committee that 'the tendency of the community is … for each man to think himself perfectly equal to any other'.
Does Australian Property Law exist? Andrew Buck thinks unequivocally so; indeed its departure from its English parentage was evident well before most current property law texts acknowledge. In this regard the author gives a subtle brickbat to many of the mainstream property law texts, more concerned with the esotery of the common law than the exigencies of the Australian condition. 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 an 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 historic factors, and the colonial Australian experience moulded a distinctively Australian property law.
John Page
Citation: Journal of Australian Colonial History, Vol. 9, 2009, pp. 211-12,