The cost of 'regular' freehold over Indigenous land in Queensland

Opening up land for development*

There is perhaps a tension within the way we understand these communities as both an expression of Indigenous autonomy but also with a more oppressive colonial past. This tension is implicit in the complicated relationship between ideas of being treated the same - having a 'regular' freehold title - and recognising communal title and traditional ownership as prevailing norms within Indigenous communities.

The Queensland government has now passed the Aboriginal and Torres Strait Islander Land (Providing Freehold) Act 2014. The Act's primary purpose is to enable the freeholding of land in Aboriginal and Torres Strait Islander communities. Presently much of this land is held as Aboriginal or Torres Strait Islander freehold or on trust for the community. The current arrangements limit the grant of these interests to traditional owners or other Aboriginal or Torres Strait Islander inhabitants of the community. The existing freehold is therefore a limited type of freehold.


The aims of this reform is to 'introduce the option of ordinary freehold title into Aboriginal and Torres Strait Islander communities'. According to the government, this will 'provide greater economic development opportunities and remove barriers to home ownership in Aboriginal and Torres Strait Islander communities.' While this may well be the effect, it raises the question: at what cost?

Women's Property

The Married Women's Property Acts made a big change...but women's property remains an exception*

I have been doing some deep reflection on the progress of my thesis. I have concluded that my thesis question seems to have suffered a little from 'drift' away from my initial goal, to something that incorporated it but was perhaps a little different.

In my last iteration, I was looking at the doctrinal incoherence of constructive trusts... Indeed I was immersed in the intricacies of why across four common law jurisdictions (Australia, Canada, New Zealand and England) the law of trusts was uniform in recognising the 'intimate partner' constructive trust - and so a means of recognising women's separate property - but so diverse in the doctrine harnessed to deal with the 'problem' of women's separate property.

I've spent this last few weeks going back to basics. What was I really trying to show? My (bigger than PhD) idea is that the notion of property is itself inappropriate to deal with contemporary issues. I think property theory, in its liberal market mould, is unsuitable for our contemporary culture (copyright), for culture in its wider sense (first nations/Indigenous peoples' customary 'title') and it is most certainly unsuitable to deal with the huge issue of the environment, including of course, climate change. My PhD thesis is about the gendered nature of property and how it upholds the economic dependence of married women (married in a legal and de facto sense).

In my view, all property does is support the creation of a new market based on the idea of atomised, separated, individuals who are 'rational profit maximisers' and are in competition and unconnected with anyone else.

I'm not anti-capitalism - I agree that markets have created the circumstances for improvement in people's lives. But there must be a balance to the greed that accompanies unaccountable, unrelated, disembodied beings who exist in the eyes of the law (and economic theory).

So I have returned, in my thesis, to the roots of the question that first engaged me. I ask: is property gendered?

Here is a prezi that embodies my present thinking about how this argument might run. I'd be interested to hear your thoughts.

*image from https://ontariorealestatesource.wordpress.com/tag/women/

Normative foundations of intimate partner constructive trusts

On 5-6 December the Melbourne Law School is hosting a Trusts Conference at which I will be presenting.  Here are the speaker notes and powerpoints for my presentation.
'Distribution, Redistribution or Maintaining the Status Quo? The Normative Foundations of Intimate Partner Constructive Trusts'

Judgments concerning intimate partner constructive trusts often claim not to effect a redistribution of property as between the legal and beneficial owners. Yet despite looking at the parties’ respective contributions and the context of their relationship, the courts’ findings embody assumptions about justice and the value of labor within marriage-like relationships. Therefore in finding a constructive trust and determining the date at which it arose, it is at least arguable that the courts are themselves allocating property interests. This paper examines key Australian decisions on intimate partner constructive trusts to identify and critique possible justificatory norms on which contemporary doctrine in this area is founded.

Are there boundaries to freedom of contract?

Contract law recognises the application of power

Does contract as we know it continue to exist? That it may not is a fairly bold proposition...greatly discussed of course since Grant Gilmore's 'The Death of Contract' in 1974. Gilmore argued that:

The most dramatic changes touching the significance of common law in modern life also came about, not through internal developments in common law, but through developments in public policy which systematically robbed contract law of its subject matter…removing from ‘contract’ transactions and situations formerly governed by it... [p6]

In August this year, a Queensland Court of Appeal decision provided evidence to support Gilmore's thesis, upholding a purchaser's right to end an otherwise valid residential land purchase. The reason? The vendor's solicitors, in sending the contract to the purchaser's solicitors, failed to draw their attention to the warning statement attached to the front page. This breached s368A(2) of the Property Agents and Motor Dealers Act 2000 (Qld) ('PAMDA').

Does this provision, and its interpretation, really protect consumers? Or is it instead a blunt instrument that erodes all the assumptions we make about the foundations of contract law?

Compensating Organ Donors: Commodification or Freedom?

The Commonwealth government has today announced a ‘grant’ scheme for live organ donors. The scheme will pay live organ donors the minimum wage for six weeks following donation, with the aim of supporting them financially.

Such a decision is likely to ignite the debate over the morality of payment for 'transactions' involving the human body. There are two sides to this debate: the risk of commodification of the human; and the freedom and autonomy of donors to choose how they deal with their body.

Paying the Tax Man

Students of taxation law often see little connection between tax and other practice areas. In reality, tax tends to raise a variety of interesting issues in almost every other field of law. This post is about one such example.

Those who have bought and sold real property would be aware that at 'settlement' the buyer pays the purchase price and in exchange, they receive the clear title to the land. Clear title means that any mortgage over the property is released. To release the mortgage, the seller's mortgagee will need to be paid out. Usually, all this happens in one place at the same time. While it looks like a single seamless transaction, in fact it involves two discrete transactions: that between the outgoing mortgagee and the seller; and that between the seller and the buyer.

A 2012 decision of the Full Court of the Federal Court has called into question the position of hte releasing mortgagee at settlement through the operation of a tax statute.

Learning Land Law - and More

The mountains surrounding Cairns

Most legal practitioners when hearing 'land law' mentioned will roll their eyes.  Renowned as one of the most boring and archaic of the sub-disciplines taught in the law degree, they will recount their nightmares about the rule against perpetuities, future interests, and the doctrine of tenure.

But what if land law were taught differently?  What if land law, rather than representing an archaic and irrelevant list of rules were viewed through a different prism?

I confess to having practised in land law (property and commercial law and some native title) for some 16 years, and to having taught it since 2004.  But in all those years of experience, it is clear to me that this subject remains central to our understanding of the common law.  The subject lies at the intersection of law and sustainability - sustainability of governance, of society and culture, of the economy and of the environment.

Ode to Property Law

Have a look at this great post on Skeptic Lawyer about property law and its meaning. Brought a tear to my eye...