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Law Notes Property A Notes

Characteristics Of Property (Second Order Theory) Notes

Updated Characteristics Of Property (Second Order Theory) Notes

Property A Notes

Property A

Approximately 82 pages

These notes were used to achieve a High Distinction in Property A at Monash University, and include both policy and problem question notes. Be aware that at the time this exam was taken Property A was a closed book exam so these notes were used to study and memorise content. The notes cover all course content.

They include clear and easily usable exam problem structures including all relevant cases and legislation, as well as suggestions for likely policy subjects.

The notes are easily navi...

The following is a more accessible plain text extract of the PDF sample above, taken from our Property A Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Characteristics of property (second order theory)

The characteristics

Ownership (the ultimate right other than Crown rights) of an object generally includes the right:

  • To use: can use in any way you want. However this is not unrestricted. On land – you can prevent people coming on racist/sexist conditions. Can’t cause a nuisance.

  • To exclude others from the thing: there are restrictions on this eg can’t exclude certain state organisations (eg police) in certain cases

  • To alienate: ie to dispose of one’s interest in the thing eg selling, gifting. Not a feature of all property rights – eg Native Title cannot be alienated other than to the Crown.

Note overlap with Posner’s theories here.

These are characteristic and all may not always be present

Case regarding the legal meaning of property.

  • Members of Yolgnu people at Yirrkala claimed mining lease interfered with their native title rights which existed from time immemorial

  • Their claim was rejected by Blackburn J (NT Sup Crt)

Concerned the Gove Peninsula. Yolgnu claimed mining lease interfered with their Native Title which had existed from time immemorial. Their claim was rejected by Blackburn J (NTSC).

Blackburn J’s Decision

  • Held: Although Ps had proved an established recognisable system of law existed, the usage of the land did not fall within our system of interests which we ascribe as private property

  • Plaintiffs had a right along with members of other clans to use and enjoy the land, but no right to exclude others or to alienate

Note: Cf 2+3 (justfications for PY – labour theory and self-realisation) – many first Australians believe they belong to the land rather than that the land belongs to them: T&D 1.3

Blackburn denied the claim because although Y showed they had a system of law, the usage of the land did not fall within the CL system of interests which we ascribe as private property. He went through the three criteria: ticked on criteria 1 (to use) but failed to have rights under criteria 2 (exclude others) and 3 (alienate the land). As a result the proprietary interest was not recognised.

(1.8) Note that Blackburn J emphasised that not all 3 of the characteristics mentioned have to be present in every case for a property right to exist.

(3.88) Held that there was a right to exclude only from sites of ritual/sacred sites.

As a single judge of NTSC: the courts rarely recognise new proprietary interests. This would be for the ultimate appellate court (HCA) to recognise.

Mabo v Queensland (No. 2) (1992)

  • A group of Murray Islanders sought a declaration that they had land rights under customary law that survived acquisition of sovereignty

  • High Court said that the common law that applies in settled colonies recognises the rights of the indigenous peoples to their land

Sought declaration lands rights survived acquisition of sovereignty. HCA said CL recognised the rights of indigenous people to their land.

  • Native title recognised.

  • Terra nullius rejected.

  • Native title need not include a right of exclusive possession.

  • NT inalienable except to the Crown.

Could be extinguished by crown but was recognised by CL. Court at pains to stress the rights inalienable. ‘...

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