Australian property law

Australian property law, or property law in Australia, are laws that regulate and prioritise the rights, interests and responsibilities of individuals in relation to "things" (property). These things are forms of "property" or "rights" to possession or ownership of an object. Property law orders or prioritises rights and classifies property as either real and tangible, such as land, or intangible, such as the right of an author to their literary works or personal but tangible, such as a book or a pencil. The scope of what constitutes a thing capable of being classified as property and when an individual or body corporate gains priority of interest over a thing has in legal scholarship been heavily debated on a philosophical level.

Land law

Land is the predominant focus of Western property law, including Australian property law. Legal developments in this field outweigh the development of other forms of property law, this is primarily due to the high value of land in comparison to other forms of property, such as chattels.

Each state in Australia has a different regime for the regulation and bureaucratisation of land. Property law is a largely statute-based but continues in important aspects to be influenced by the common law and principles that originate from Australia's history as a British colony, where land and estate law developed through the ambit of feudalism.

Property law is enabling in that it creates a system for evidencing, recognising and transferring title to land, facilitating its use as an economic instrument. Other legal instruments in property law that facilitate the private and commercial dealing of land include the mortgage, lease, covenant and easement.

Torrens title

All Australian colonies (now states and territories) adopted the Torrens system of land registration of title between 1857 and 1875. The Torrens system was introduced first in South Australia by Sir Robert Richard Torrens, the Registrar-General of Deeds, through the Real Property Act 1858.^[1] Victoria adopted the system with the Real Property Act 1862,^[2] and New South Wales with the commencement of the Real Property Act 1862 on 1 January 1863.^[3]

Most land in Australia is now held under the Torrens system, although remnants of the old system of land title still remain, called “general law land”. All land in the Australian Capital Territory is leasehold (effectively Torrens freehold), and much of the Northern Territory is held under Crown lease. Native title is now recognised as a form of land ownership. Some land remains as Crown land (i.e. in Australia, public land).^[4]

In accordance with the principles of the Torrens system, each jurisdiction maintains a register of land titles of land in the jurisdiction that has been registered under the system. The register also shows the proprietor (owner) of the land. This system was devised to reduce the amount of fraud relating to land due to falsification of title deeds. It does so with "ownership" of the land being confirmed only upon registration of the property. That is, "it is not a system of registration of title but a system of title by registration".^[5] This gives a purchaser "greater assurance, indeed certainty, of title".^[6] The principle of "indefeasibility" of title - where a right has been entered on the register, it cannot be defeated by later rights except in certain circumstances - further protects the Torrens title holder.^[7]

The Torrens system also provides for registration of other entitlements to land such as a mortgage, by which land is used to secure a loan.

Main property codes

The main legislation in each Australian jurisdiction regulating interests in land law in relation to property (negotiable instruments) and the scheme of registration (title) are:

State or Territory of Australia	Legislation regarding property	Legislation regarding Title
New South Wales	Real Property Act 1900 ^[8]	Conveyancing Act 1919 ^[9]
Victoria	Property Law Act 1958 ^[10]	Sale of Land Act 1962 ^[11]
Australian Capital Territory	Civil Law (Property) Act 2006 ^[12]	Civil Law (Sale of Residential Property) Act 2003 ^[13]
Queensland	Property Law Act 1974 ^[14]	Land Titles Act 1994 ^[15]
Northern Territory	Law of Property Act ^[16]	Land Title Act ^[17]
South Australia	Law of Property Act 1936 ^[18]	Real Property Act 1886 ^[19]
Tasmania	Conveyancing and Law of Property Act 1884 ^[20]	Land Titles Act 1980 ^[21]
Western Australia	Property Law Act 1969 ^[22]	Transfer of Land Act 1893 ^[23]

Goods and chattels

Australia's law in relation to goods and chattels (items which are not land or intellectual property) follows that of the United Kingdom.

Intellectual property

Australia follows the English traditions for intellectual property, and is a signatory of the Berne Convention for the Protection of Literary and Artistic Works and operates a system of automatic copyright. Other areas of Australian intellectual property include patents, designs and Plant breeders' rights.

References

^ Real Property Act 1858 (SA).
^ Real Property Act 1862 (Vic).
^ Real Property Act 1862 (NSW)
^ "Systems Of Ownership And Registration". Intergovernmental Committee on Surveying and Mapping. Retrieved 14 November 2019.
^ Bahr v Nicolay (No 2) [1988] HCA 16, (1988) 164 CLR 604 at p 613, High Court (Australia).
^ Black v Garnock [2007] HCA 31, (2007) 230 CLR 438, High Court (Australia).
^ Breskvar v Wall [1971] HCA 70, (1971) 126 CLR 376, High Court (Australia).
^ Real Property Act 1900 (NSW).
^ Conveyancing Act 1919 (NSW).
^ Property Law Act 1958 (Vic).
^ Sale of Land Act 1962 (Vic).
^ Civil Law (Property) Act 2006 (ACT).
^ Civil Law (Civil Law (Sale of Residential Property) Act 2003 (ACT).
^ Property Law Act 1974 (Qld).
^ Land Titles Act 1994 (Qld).
^ Law of Property Act (NT).
^ Land Title Act (NT).
^ Law of Property Act 1936 (SA).
^ Real Property Act 1886 (SA).
^ Conveyancing and Law of Property Act 1884 (Tas).
^ Land Titles Act 1980 (Tas).
^ Property Law Act 1969 (WA).
^ Transfer of Land Act 1893 (WA).