Australian Property Law/Introduction

Property is both a legal concept and a social institution. This textbook focuses on the former, examining legal principles and rules regulating the creation, transfer and enforceability of interests in property. Nevertheless, it is impossible to understand property law in isolation from its historical, economic and social context.

All human societies have rules to control access to valuable resources. These rules vary according to the nature and needs of the particular society. The rules governing property in traditional societies, for instance, differ greatly from those of contemporary societies.

Large differences may exist between industrialized societies. The best example is the difference, until recently, between capitalist and communist societies with regard to private property. Most countries today have mixed economies in which some resources are privately owned, some assets are owned by the state and free enterprise is subjected to some state regulation. In Australia, private property predominates, though certain resources such as beaches and public parks, are treated as common property.

In Australia, private property in land was introduced in 1788, displacing systems of Aboriginal law based on common ownership. In Mabo v Queensland, the High Court of Australia recognised Aboriginal customary rights to land for the first time.